Can Possessory Rights Be Shared?

When we talk about sharing assets, we usually think of deeded properties, real estate with documentation in order, ready to be divided among the heirs. But what about when these assets are not formally registered?

On this subject, the Superior Court of Justice (STJ) has already established that possessory rights can also be shared, leading us to reflect: what, in fact, makes up someone's estate?

The value of possession: A property without a deed may seem “irregular” in the eyes of formal law, but the reality of possession is much deeper. It can mean decades of work, financial and emotional investment, and even be a family's only asset. Possession, in this sense, goes beyond mere physical occupation; it is a right that carries economic and social relevance and should be duly recognized and protected when exercised legitimately and peacefully.

The STJ's decision makes it clear that the right to possession has value, regardless of its formalization. This begs the question: is ownership limited to what is registered, or does it also include what is experienced and cultivated?

Obligations such as paying taxes, maintaining and improving the property or land over the years, or even buying a property without registering it - although not recommended - are situations that often reflect the reality of ownership. These acts demonstrate a legitimate bond with the property, revealing its value and function in everyday life.

The difference between ownership and possession shows us that assets that have not yet been formalized play a significant role in a person's assets, and also in the social context. After all, whoever effectively exercises possession must guarantee the possessor their rights, including succession. After all, why disregard the history behind a property, a piece of land or any other asset which, although unregistered, has had its existence marked by legitimate and peaceful possession?

This decision by the STJ shows how justice, in many cases, goes beyond formalities, embracing the realities of real life, where not everything is as formal or straightforward as a signed contract.

What do you think about the importance of possession and the recognition of this right in the division of assets?

Recognizing this right in the division of assets is an important step towards ensuring that, even without a formal title, those who have invested in and cared for a property can have their rights preserved.

What about the formalities of law and life as it is?

In practice, life doesn't always follow the formal lines of legislation. The purchase of an unregistered property, the daily care of land, or the preservation of an estate over the years are examples of this. The challenge for the law is to balance these realities with the need for legal certainty.

Share your thoughts with us!

Reference:

REsp 1.984.847 STJ