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Inherited Property Without Inventory Can Be Adverse Possessed: Abandonment by Heirs Allows Judicial Transfer of Ownership to Third Parties.
Millions of properties in Brazil remain idle after their owners pass away. Without a formal inventory, the registry continues in the name of the deceased, while the heirs either use or simply abandon the asset. This legal void creates dangerous loopholes: the property, even being part of the inheritance, can be taken by third parties who prove continuous, peaceful, and good-faith possession.
The mechanism that allows this is adverse possession, provided for in Articles 1,238 to 1,244 of the Civil Code, and already recognized in rulings by the Superior Court of Justice (STJ) when there is prolonged abandonment by the heirs.
What the Law Says About Inherited Properties and Adverse Possession
The rule is clear: for the inherited asset to be legally transferred, it is mandatory to open an inventory within up to 60 days after death, according to Article 611 of the Code of Civil Procedure.
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If the inventory is not conducted, the property remains in the name of the deceased, hindering sale registrations and complicating its regularization.
However, the Civil Code, in Article 1,238, provides that anyone who possesses the property continuously, without opposition and with the intention of ownership, may acquire the property through ordinary adverse possession (10 years) or extraordinary (15 years, reduced to 10 in cases of possession with residence or production). This applies even against heirs who do not regularize the asset.
Experts Warn About Risks for Heirs
Attorney and Civil Law Professor Flávio Tartuce explains: “The inheritance is a universality of rights. But if the heirs cease to exercise possession or abandon the property for years, a third party can file an adverse possession action and become the owner, even though there is a registry in the notary’s office.”
Jurist Maria Helena Diniz notes that adverse possession is a way to “rectify abandonment situations, give social function to property, and prevent properties from being left out of economic circulation.”
How Third Parties Achieve Judicial Transfer of Inherited Property
When someone occupies inherited and abandoned property for years, they can file a judicial adverse possession action. To succeed, they must present:
- Proof of continuous and peaceful possession;
- Documents such as utility bills and property tax receipts in their name;
- Witnesses confirming the occupation of the property;
- Evidence that the heirs did not exercise possession or administration.
If the requirements are met, the judge declares the original acquisition of the property, ordering the registration in the notary’s office in the name of the new owner.
Examples from Jurisprudence
The STJ has already confirmed that adverse possession can prevail over the inaction of heirs. In several rulings (such as REsp 1,453,801/RS), it recognized the rights of possessors who cared for the property for decades, in light of the abandonment of the inheritance.
In a recent case, neighbors who occupied inherited property for more than 20 years obtained definitive ownership, even with the registry in the name of the deceased, because the heirs never regularized the situation.
An inherited property is not a guarantee of eternal wealth if the heirs do not fulfill their legal obligations.
The absence of an inventory and negligence in caring for the asset can pave the way for judicial adverse possession, transferring ownership to third parties.
The message from Justice is clear: property needs to have a social function. Heirs who ignore this rule risk losing an asset that, with minimal organization, could be preserved for the family.
Minha mae mora há 50 anos numa casa de herdeiros do meu pai e Seus irmãos. Quem pagava tudo era meus pais. Ele faleceu em 2009 e minha mãe continua lá. Outro dia ela disse que um primo meu falou que o pai dele que também é falecido falava em vender a casa e dividir o dinheiro. Falei com um advogado sobre a usocapiao que disse que depende do entendimento do juiz. Pensei em entrar com a usocapiao para minha mãe. Mas vou deixar quieto, se algum parente vir reclamar ai tomo as providências cabiveis, a escritura do imóvel está comigo. E minha filha e minha mae é quem pagam tudo lá dessa casa.
Preciso dessa jurisprudência citada do STJ
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