A compra e venda imobiliária em viager: liberação de capital a partir de imóvel próprio e tutela do domicílio do idoso

• Autor(a) principal: Silva, Rafael Cândido da
• Data de Publicação: 2023
• Outros Autores: [e-mail]
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/20984
• topic: Real estate viager contract; Buying and selling in viager; Lifetime home maintenance; Home protection; Contrato de viager imobiliário; Compra e venda em viager; Manutenção vitalícia do domicílio; Proteção da moradia; CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVIL

This thesis analyzes the purchase and sale of real estate in viager, which is understood as the legal business where the seller, fundamentally an elderly person, alienates the naked ownership of property, used for housing purposes, reserving the real right to usufruct or use it on a lifetime basis, in return for the payment of a periodic rent in his/ her favor, until his/ her death, which is to be made by the buyer. The main objective of the thesis is to investigate whether and to what extent it is possible to recognize, in the light of normative data, the juridicity of the purchase and sale in viager, focusing on determining the vocation of this business to serve not only property interests, but also existential and socially relevant interests The problem-situation focuses on the insufficiency of conceptions of legal relations capable of combining the expressions of private autonomy and public order to assist the elderly immersed in an environment of income degeneration, in order to enable the holder of the right of property to obtain a periodic sum of capital from the property itself without implying the change of residence during their life. To this end, the incursion in the normative limits of the use of death as a legal element of transactions between individuals is necessary to describe the limitation imposed on succession pacts, in order to distinguish the causa mortis legal businesses, and with post mortem efficacy. The businesses related to releasing equity from own property with lifetime maintenance of the residence are then analyzed, in particular, the reverse mortgage, the home reversion and the purchase and sale in viager, to describe the structural profile, the interests involved and the essential effects of the business, in order to extract the qualification from the legal asset situations typical of the contract of constitution of lifetime income and the real right of usufruct or use. From the functional approach, the vocation of the real estate viager business is observed to the satisfaction not only of the property interests of the parties, but also existential interests of the seller, such as housing and residence, whose rereading in the light of the guidelines of civil-constitutional law is also addressed. Finally, the axiological hierarchy of the interests involved in the exercise of qualitative business autonomy is affirmed in order to conclude it by the civil-constitutional expression of the purchase and sale of real estate in viager. The thesis is based on the theoretical framework of the methodology of civil-constitutional law and adopts the logical-deductive method, based on eminently bibliographic research.