Função social da posse e interversão possessória: uma análise sobre o convalescimento da detenção em posse

Abstract

Work is central to possession in Brazilian civil law, specifically situations arising from detention. These are situations in which the person is not considered possessor, even though they exercise de facto power over the thing, the law disqualifies such a relationship. The question of work arises from the conception of social function, and whether the use of a property, in accordance with this principle, could not lead to the transformation of the nature of such possession, from detention to possession in itself, and from unfair to fair . As for the method chosen for the development of this work, it was deductive, through bibliographical research, in books on legal doctrine, published articles and national jurisprudence. The research of the work is exploratory, addressing the discussion about ownership, starting from legal concepts such as social function. The general objective was to analyze the doctrinal and current legal researchers' understanding of the concept of interversion of possession in real estate, and how the notion of social function of possession would affect such legal situations, considering the need for interference or not by the owner of the thing. about the theft, or seizure, by third parties. Firstly, it was defined that, in the current doctrinal understanding, in the most considerable part, possession is considered a right, to which the national order adopts the so-called objective theory, for its concept, where possession is the externalization of property. Despite the adoption of this theory, especially by the Civil Code, it can be seen that this occurred in a mitigated way, with there already being interpretations that consider the application of so-called sociological theories to be in accordance with the legal order, especially constitutional principles. The forms of detention have been defined, especially those existing in cases of objective vices of possession, explicit in the Civil Code, being violence, clandestinity and precariousness, with the existence of detention occurring as long as such situations persist, except in precariousness, generating effect of “vitiating” possession, making it unfair, which affects deadlines such as adverse possession, and in particular possessory actions. Next, it is necessary to address the convalescence of possession, which is a situation, in terms of legal phenomena and not necessarily facts, in which there is a change in the character of possession, that is, in its fundamental characteristics, and, for For the purposes of this work, the most relevant intervention is in situations of detention for possession, as well as possession considered unfair to fair. The character of possession could not be changed solely by the will of the possessor, occurring mainly in the case of negotiation between the former possessor or owner and the new possessor. However, when analyzing legal interpretations focused on the sociological aspect of ownership, as a guarantor of fundamental rights such as housing and work, we come to the conclusion that possessory interversion can occur regardless of the owner's knowledge of the embezzlement situation, moving away from the understanding of possession as a mere appendage of property, but as an autonomous phenomenon, which makes it possible to change its character, its convalescence, if its social function is fulfilled, without opposition.