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The Decision of the STJ Showed How a Loan Agreement, Combined with Simple Notifications, Was Sufficient to Prevent the Adverse Possession of a Property Occupied for Decades by Relatives, Becoming a Reference for Owners in Similar Situations.
The Fourth Panel of the Superior Court of Justice upheld the dismissal of a claim for adverse possession filed by heirs who had occupied a property for nearly four decades.
In Special Appeal 1.552.547/MS, the ministers understood that the presence of the occupants arose from a loan agreement, initially verbal and later formalized in writing, and that extrajudicial notifications from the owner demonstrated continuous opposition. Without the subjective element of animus domini, the acquisitive claim was dismissed.
What Is a Loan Agreement and How It Prevents Adverse Possession
A loan agreement is the free loan of a non-fungible item, as provided in Articles 579 to 585 of the Civil Code.
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In this relationship, the borrower holds direct possession and acknowledges that the indirect possession remains with the lender, who can demand its return.
This precarious origin makes possession incompatible with acquisition by adverse possession, because there is no intention to act as the owner.
According to the jurisprudence of the STJ, those occupying a property in this condition know who the owner is and therefore do not meet the essential subjective requirement for the acquisitive prescription.
Even if the duration of occupancy is long, the derived nature of possession does not automatically transform into ownership.
The contractual link, combined with the periodic expression of opposition from the owner, prevents the requirement of quiet, peaceful possession with the intent of ownership.
Emblematic Case Judged by the STJ
The controversy began in the 1970s when the owner granted the property to employees under a verbal loan agreement.
The situation remained until 2008, when, after the death of the original borrowers, the heirs signed a new written loan agreement with a term of two years.
At the end of the period and without voluntary return, the family filed for extraordinary adverse possession, claiming about 38 years of continuous possession.
The first-instance ruling rejected the request by recognizing the precarious nature of the occupation.
The Court of Justice of Mato Grosso do Sul confirmed the decision, highlighting that the owner visited the property and had notified the occupants, reinforcing the opposition.
In analyzing the case, the STJ dismissed the special appeal from the heirs.
According to the Fourth Panel, “the possession originally acquired in a precarious manner thus remained throughout its exercise,” and the extrajudicial notifications evidenced the owner’s resistance, dismissing the requirement of “quiet and peaceful” possession.
Consolidated Jurisprudence on Loan Agreement and Adverse Possession
The thesis was not isolated.
In later rulings, the STJ reiterated that the existence and renewal of loan agreements maintain possession in a precarious nature, preventing adverse possession.
On December 1, 2020, in REsp 1.448.587/DF, the Fourth Panel reaffirmed that successive extensions of the contract preserve the nature of possession and do not authorize its transformation into ownership.
On August 21, 2023, in AgInt in AREsp 1.657.468/SP, the Court reinforced that maintenance costs of the property fall on the borrower, and acknowledging them as the owner due to expenses related to use would reward contractual default.
Although Theme 1.059 of the repetitive cases involves hypotheses concerning heirs and exclusive possession of an ideal share, these statements do not relativize the strength of loan agreements as an impeditive cause of animus domini when the contract is valid and the owner’s opposition is demonstrated.
How to Protect the Property with Adequate Documentation
Prevention begins in form.
A clear loan agreement identifies the lender and borrower, describes the property accurately — including registration, address, and other elements of individualization — defines the term or condition for return, and stipulates responsibilities for fees, taxes, and maintenance.
Certification of signatures is not a requirement for validity but helps demonstrate authenticity and dating.
Formalization, in itself, is usually accompanied by active communication from the owner.
Registered letters or periodic extrajudicial notifications reaffirm the tolerance and, if necessary, invite for vacancy or express renewal.
This documentary record not only proves the continuity of the loan agreement but also evidences the opposition, a sufficient requirement to dismiss the idea of quiet and peaceful possession over time.
There are owners who choose to give additional publicity to the legal situation.
The contract can be registered in Title and Document offices for preservation and proof before third parties, and there are notarial practices that enhance the visibility of the loan.
In any scenario, the more consistent and updated the documentary trail is, the less room there is for controversy over the nature of possession.
Common Questions about Loan Agreements
A common doubt concerns the payment of property tax (IPTU) and ordinary expenses.
In general, the occupant’s payment does not imply recognition of ownership; it is an obligation of those who use and benefit from the property, especially when the agreement provides for such responsibility.
The issue of rent also arises: while the loan agreement is in effect, the free use is an essential element of the arrangement.
Charging for compensation removes the nature of the loan and requires the termination of the contract and the establishment of another legal relationship, such as leasing.
Another sensitive point is the end of the term without renewal.
Upon expiration, the continuation becomes irregular, but still marked by the original precariousness.
In this context, the owner’s active stance — with records of opposition and compatible measures — continues to be sufficient to dismantle the claim of possession with intent to own.
Why the Topic Returned to Legal Debate
The discussion returned to the center of legal news due to combined factors.
There was an increase in demands for extrajudicial adverse possession after Law 14.382/2022, which reshaped registration procedures and encouraged administrative routes.
Additionally, many families lived with idle properties during the pandemic, and the migration to home office led relatives to occupy homes amicably and informally.
In parallel, extrajudicial inventories grew and revealed situations where an heir remained alone in the property without a written agreement, a scenario that often fuels disputes over the quality of possession.
In this context, decisions like that of REsp 1.552.547/MS serve as practical guidance for preventing disputes.
The central message is straightforward: when the occupant is in a loan agreement and the holder expresses documented opposition, neither animus domini nor qualifying possession for adverse possession is configured.
Ways to Protect Heirs and Owners
The experience of the courts indicates a simple roadmap.
Whenever there is tolerance in occupancy — even between parents and children — formalization through a loan agreement reduces uncertainties.
With each significant change, such as the death of an occupant or changes in residents, updating the instrument preserves the continuity of the bond and records new responsible parties.
In parallel, periodic written communications keep the opposition alive and demonstrate that the occupant’s presence is not indifferent to the owner.
In inventories, initiating and regularly progressing the division helps to demonstrate that the property is subject to a common administration regime, which contradicts the thesis of exclusive possession with intent to own by a single heir.
Monitoring contractual dates and maintaining an organized record of messages, notification receipts, and any responses completes the protection circle.
Ultimately, the logic is pragmatic: adverse possession rewards those who act as owners without contestation.
The loan agreement, when valid and well documented, materializes the contestation and preserves the holder’s right against the loss of the property.
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