THE LEGAL NATURE OF POSSESSION IN UNREGISTERED PROMISSORY PURCHASE AGREEMENTS: EXPECTATION OF RIGHT, POSSESSION AD USUCAPIONEM, JURISPRUDENTIAL DIVERGENCE AND REFLECTIONS ON POSSESSORY PROTECTION

Abstract

Objective: This article analyzes the legal nature of possession exercised by the promissory buyer in unregistered real estate purchase agreements, aiming to determine whether such possession constitutes mere detention or lawful possession eligible for possessory protection and acquisition of ownership through usucapion.

Methodology: The research employs a qualitative, legal-dogmatic approach, based on bibliographic review and analysis of precedents from the Superior Court of Justice (STJ) and the Court of Justice of Santa Catarina (TJSC), including discussion of STJ Theme 1.025.

Results: Findings indicate that the absence of registration does not invalidate the lawful possession exercised by the promissory buyer when there is evidence of animus domini and peaceful, continuous, and uncontested possession. The jurisprudence of the STJ and part of the TJSC supports the protection of such possession and the possibility of property acquisition, even when derived.

Conclusions: It is concluded that the possession of the promissory buyer, even in unregistered agreements, is legitimate and ad usucapionem, deserving full legal protection through possessory actions, publiciana action, and extraordinary usucapion. This interpretation upholds the constitutional principles of the social function of possession, human dignity, and the right to housing.