Usucapião de imóvel rural: a proteção do pequeno agricultor sob a ótica do STJ

In 2018 the Third Panel of the Brazilian Superior Court of Justice (“STJ”), during the judgment of Special Appeal n. 1.641.038, established that it is possible for a Brazilian legal entity with majority foreign-controlled capital to obtain adverse possession of rural properties, provided that the same conditions are observed for the purchase of rural areas by foreign persons – whether natural, legal or equivalent.

The case law was filed by a company in the food industry which requested adverse possession of a property located between the states of Ceará and Rio Grande do Norte.

Rapporteur Judge Nancy Andrighi commented that the applicable law imposes a series of conditions for the acquisition of rural land by foreigners, as the issue involves the defense of the territory and national sovereignty. This can be seen, for example, in Law No. 5.709/1971, which regulates the acquisition of rural property by foreigners residing in the country. For the Appellate Judge, the law provisions apply to Brazilian companies in which foreign individuals or legal entities hold the majority of the share capital and which reside or have their headquarters abroad.

“There is nothing in the legal system that prima facie prevents adverse possessions from being recognized,” she stated, ordering the case to be sent back to the lower court for judgment on the merits.

 Background

The adverse possession of rural property was created to benefit small farmers and is regulated by article 191 of the Brazilian Federal Constitution, with identical wording in article 1.239 of the Brazilian Civil Code.

According to the legal codes, this original form of property acquisition requires proof of peaceful and uninterrupted possession, for at least five years of a rural area of up to 50 hectares, and its use for production and housing.

Although some of these requirements are present in urban adverse possession, the rural modality has its peculiarities, such as the need for the land to become productive through the work of the applicant and their family.

According to the Special Appeal no. 1.040.296, reported by the minister Luis Felipe Salomão, the requirements – which are also present in agrarian law rules – seek to encourage land productivity and fulfill the social function of protecting farmers. In his words, rural adverse possession is characterized by the possession-work element.

“Only possession marked by work serves this purpose. In order to realize the right to ownership of rural property, the economic and rational exploitation of the land is a prerequisite that cannot be disregarded, making clear the legislator’s intention to give prestige to the possessor who confers a social function on the rural property” he said.

Case Law

Rapporteur Minister Nancy Andrighi decided that it is possible for an adverse possession counterclaim be filed with the writ of entry of legal possession. This Superior Court of Justice understands that there are two types of actions that follow the rule of common procedure and are also related when they deal with the same property. The minister emphasized that adverse possession was listed between the special procedures of the Brazilian Civil Procedure Code (“CPC/1973”), while the writ of entry of legal possession was submitted to the common procedure which prevented the counterclaim writ of entry of legal possession during the course of the adverse possession action. And, with the creation of the Brazilian Civil Procedure Code, both actions started to be ruled by the common procedure. It should also be highlighted that article 343 of the CPC/15 allows the defendant to file counterclaim to express a claim of their own, connected with the main action.

Another relevant theme concerning adverse possessions are properties smaller than the rural module. The Fourth Panel established that is possible to acquire property with a smaller area than the rural module established for the region, through the Rural Special Usucapio. During the judgment of the Special Appeal 1.040.296, the adverse possession of a smaller area was approved to a farming couple that since 1996 has had a uninterrupted and uncontested possession of an area of 2,435 square meters, and in the region, the area necessary for the subsistence of the small farmer is set at 30 thousand square meters.

Minister Luis Felipe Salomão emphasized the requirement of social function of the special rural adverse possession, provided on article 191 of the Brazilian Constitution and article 1.239 of the Civil Code, that allows adverse possession of an area as long as it doesn´t exceed 50 hectares, having defined only the maximum limit and not the minimum area. He also stated: “More relevant than the area of the property is the requirement that precedes it, that is, the work done by the owner and their family, which makes the land productive and gives it its social function”.

Comments    

This cases law represents an important milestone in discussing adverse possession of rural proprieties, especially concerning protection of the small farmers, considering the subsistence of farmers and their family.