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To Prevent Usucapião, It’s Not Enough to Send An Extrajudicial Notification: The Deadline Is Only Interrupted With An Appropriate Judicial Action (Claiming, Reinstatement or Immision of Possession), Provided It Is Judged Favorable.
The extrajudicial notification is often used by owners who wish to recover a property occupied by third parties. However, as explained by lawyer Jaylton Lopes Jr., former judge of the TJDFT, this isolated resource does not prevent the advance of usucapião. The Civil Code is clear: only an appropriate judicial action can interrupt the deadline and block the acquisition of property by prolonged possession.
This detail causes confusion among owners who believe that a simple notification resolves the problem.
In practice, the Justice requires stronger measures, under penalty of the occupant gaining ownership through usucapião.
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The risk is real: if the action is not well chosen, the owner may lose the property even if the deed is in their name.
What Is Usucapião and How Does It Work
Usucapião is a way to acquire ownership of a property through continuous, peaceful possession with owner’s intent during the legal deadline.
There are modalities that vary between 15 years and even 2 years, such as in the so-called family usucapião.
According to Jaylton Lopes Jr., the key lies in the occupant’s behavior. If he acts as an owner, using, managing, and paying taxes, the law recognizes the possession as legitimate.
On the other hand, rental contracts, loans or leases exclude usucapião, as they characterize possession only by tolerance.
Many owners believe that the extrajudicial notification interrupts this deadline, but this is a legal error.
When the Deadline for Usucapião Does Not Run
The Civil Code, in articles 197 to 199, determines situations in which the deadline for usucapião does not flow, such as between spouses during marriage, between ascendants and descendants, or against public servants in service abroad.
Furthermore, article 202 of the Civil Code provides for interruption hypotheses.
Among them are: judicial dispatch ordering valid citation in a process, judicial act that places the debtor in default and formal recognition of the right by the possessor himself.
Here lies the critical point: the extrajudicial notification from the owner does not interrupt the deadline for usucapião.
It would only be valid if the occupant signed a document recognizing that he occupies the property by mere permission, which almost never happens.
Why Only Judicial Action Has an Effect
To interrupt usucapião, the law requires the filing of a correct judicial action, such as possession reinstatement, a reivindicatory action or immision of possession.
However, there is an essential detail highlighted by Jaylton Lopes Jr.: if the action is judged unfounded or dismissed without resolution on the merits, the deadline for usucapião continues to run normally.
This means that it is not enough to file any lawsuit. The lawyer must assess the specific situation, determine if the possession is unjust, and choose the right measure.
A procedural error can cost the owner the entire property.
The Risk of Relying Only on the Deed
Another relevant point is the false sense of security brought by the registration at the notary’s office. Having the deed in one’s name is not sufficient to protect the property if there is prolonged possession by third parties.
The law prioritizes the social function of the property: if the owner abandons it and another occupies, cares for it, and pays taxes, usucapião may be recognized.
Therefore, relying solely on extrajudicial notification is insufficient.
The owner who wishes to safeguard their rights needs to act judicially and strategically, with specialized guidance.
The lesson is clear: the extrajudicial notification does not interrupt usucapião. Only specific judicial actions that are judged in favor can block the acquisition of property through prolonged possession.
As lawyer Jaylton Lopes Jr. emphasizes, the correct choice of the process is the only safe way to avoid losing the property.
And you, did you already know this rule? Did you think that only the extrajudicial notification would be sufficient?
Leave your opinion in the comments — we want to hear real cases from those who have gone through this in practice.
Melhor se garantir fazendo logo o inventário em caso de herança, mas não esquecer de notificar a parte contrária, erro muito comum dos advogados que notificam o advogado da parte que nem sempre tem procuração de seu cliente para representa-lo naquela ação.