Autonomia e tutela da posse urbana funcionalizada em face da propriedade urbana não funcionalizada

• Autor(a) principal: Santos, Madalena Alves dos
• Data de Publicação: 2012
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9571
• topic: Possession; Property; Social function; Posse; Propriedade; Função social; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVIL

The aim of this paper is to analyze and discuss matters related to urban conflicts that oppose possession and property in Brazil. In this country´s social reality it is common that people that don´t have a place to live occupy lands that aren´t used by their owner. Frequently these cases are brought to court and the judge is challenged to decide who should be protected by the law. In Brazilian law, the constitutional principles provide unity to the legal system. Thus, the right to housing, the human dignity and the property´s social function principle must be observed in every decision related to these matters. Therefore, when there is a conflict between possession and property in urban areas, it is relevant to consider if both the person that owns the land and the person that possesses it are acting accordingly to the law. Although the right of property is protected by law, there are duties that the owner must observe due to the property´s social function principle. If he violates them, he should not be protect, as he is acting disaccordingly to the law. On the other hand, the person who has the possession of the land, even though he is not its owner, may be protected if by occupying it he satisfies his needs and fundamental rights. His possession has, in that case, a social function. The Congress passed laws to protect the person that possesses the land against the owner that does not respect the property´s social function principle. However, even when the law does not provide for a specific case, it is possible to protect the possessor against the owner if the land was not used by him accordingly to the property´s social function principle and if the person that possesses the land uses it to exercise his dignity and his fundamental rights.