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The STJ Recently Confirmed That A Co-Owner Can Acquire The Portion Of Other Heirs Or Ex-Spouses Through Adverse Possession If Living Alone In The Property, Acting As The Sole Owner And There Is No Opposition During Legal Timeframes.
The Superior Court of Justice has consolidated, in recent rulings, that the co-owner who maintains exclusive, peaceful, and prolonged possession can acquire through adverse possession the ideal share of other co-owners and become the sole owner of the asset.
In practice, heirs or ex-spouses who have left the property and never opposed run the risk of seeing their share disappear from the estate.
What Changes With The STJ’s Position
The guidance established by the court brings effectiveness to a common situation in inheritances and separations. One of the owners remains in the property, bears the expenses, and acts with the “intention of ownership,” while the others move away.
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The jurisprudence allows that, after the legal timeframes and without opposition, this exclusive possessor can acquire the other’s share, even if there is a condominium mentioned in the property registration.
Recent Rulings That Consolidated The Understanding
In June 2022, the Third Panel analyzed REsp 1.909.276/SP. The collegiate recognized that an ex-wife, alone in possession of the apartments that were part of the couple’s assets for over 23 years, could acquire not only her share but also the ideal fraction of her ex-husband.
The court emphasized that, with the divorce, the “joint ownership” ceases and a condominium is created.
In this scenario, if only one co-owner exercises actual ownership without opposition, the time for adverse possession begins to run.
In October 2022, REsp 1.777.404/RJ confirmed the possibility for a couple that already held 50% of the apartment to acquire the other half.
The court pointed out that possessing half of the property does not prevent urban special adverse possession, as long as exclusive housing, continuity of possession, and the absence of another residential property in the owners’ names are present.
In 2023, a summary focused on jurisprudential revisions reinforced the timeframes: 15 years for extraordinary adverse possession — reduced to 10 years in case of habitual residence or significant improvements — and 5 years for urban special adverse possession when the property is up to 250 m² and serves as the owner’s unique residence.
Central Requirements To Acquire The Share Of Others
The starting point is exclusive and continuous possession. This means residing alone in the asset or using it in isolation, such as when someone receives all rental income and fully manages the property alone.
Next, the “animus domini” is essential, the behavior of one who acts as the owner.
Payment of property tax, condominium fees, insurance, and taxes in one’s own name, as well as undertaking renovations and improvements, reinforce this condition.
Another pillar is the absence of opposition.
Adverse possession does not prosper if there is effective resistance from other co-owners, whether through formal notifications, claims for compensatory rent, filing a partition action, or measures that break the appearance of exclusive ownership.
Finally, the applicable legal timeframe counts. In the extraordinary modality, it is 15 years, shortened to 10 when there is housing or significant work.
In the urban special, the timeframe is 5 years, limited to properties of up to 250 m², as long as used for housing and there is no other property in the name of the possessor.
When The Timeframe Begins To Run
The timeframe does not retroact to the period of shared use. It starts when the possession becomes exclusive.
If an heir left in 2010 but continued to pay half of the property tax until 2015, the appearance of co-ownership remained.
In this case, the starting point shifts to when those payments cease and the possession becomes exclusive and uncontested.
Legal Foundations And The Social Function Of Property
The STJ’s guidance is anchored in the social function of property provided in the Constitution and in Articles 1.238 and 1.240 of the Civil Code. The reasoning is that the right to property requires social utility.
If the ideal share remains inert — the co-owner does not use, rent, sell, or participate in expenses —, adverse possession acts as a mechanism for regularization.
According to the ministers, adverse possession “redistributes wealth” when the abandoned portion ceases to fulfill a function.
Typical Situations In Inheritances, Divorces And Partnerships
In inventories, it is not uncommon for one of the siblings to stay in the parents’ property for many years, bearing taxes and renovations, while the others move away and disappear.
In the absence of opposition and with the timeframes fulfilled, the occupant can claim 100% of the house.
In divorces without final settlement, an ex-spouse who remains, economically exploits the property, and collects all the benefits alone for more than fifteen years tends to consolidate ownership.
This occurs unless there is proof of resistance or a formal arrangement indicating mere tolerance.
In partial acquisitions, such as when partners buy half of a property and begin using it exclusively for years, the regularization of the other half through urban special adverse possession can occur.
How To Demonstrate Exclusive Possession
Proof often combines fiscal documents indicating payments made only by the possessor, receipts and invoices for works and improvements, periodic photos illustrating continuous occupation and witness testimonies from neighbors.
Income Tax Declarations in which the property appears as belonging to the possessor help to compose the evidentiary framework.
How Other Co-Owners Can Protect Themselves
Those who left the property need to express clear opposition.
Registered extrajudicial notifications, the collection of compensatory rent or the filing of partition actions and dissolution of condominium actions indicate that exclusivity is not tolerated.
These measures interrupt the characterization of peaceful and quiet possession.
There is also the option of a written loan agreement, a simple arrangement that makes clear that the occupant is in the property by mere tolerance, without animus domini.
Such instruments, when formalized, are pointed out by specialists as an effective antidote against adverse possession claims.
Extrajudicial Or Judicial: Which One To Choose
Since 2015, the possibility of extrajudicial adverse possession in registry office has expedited life for the possessor who gathers the necessary documentation.
However, properties arising from family relationships with many heirs or with some of them in unknown locations tend to face requirements that prolong the process.
In such cases, along with those involving minors or incapacitated persons or inventories that are not yet closed, the guidance is to choose the judicial route.
In the courts, the thesis has been repeatedly accepted and the outcome produces binding effect on the parties involved in the process.
Financed Property: Does The Mortgage Prevent Adverse Possession?
The existence of financing or mortgage does not block, in itself, adverse possession. Recognized acquisition through prolonged and exclusive possession, the new owner assumes the duty to pay off the outstanding debt.
Financial institutions are often cited to safeguard their credit rights.
Meeting the possession requirements is the determining factor.
Practical Guidance For Those Who Stayed And For Those Who Left
Anyone who has lived alone for a decade or more, pays all bills, makes improvements, and has never faced opposition has, theoretically, a legal path to solidify full ownership — even if only half appears in the registration.
On the other hand, heirs and ex-co-owners who “put off” action should react.
A formal act of opposition or a partition action can effectively interrupt the characterization of exclusive possession and prevent the definitive loss of the share.
The message emerging from the rulings is direct: the right of property does not coexist with abandonment. In condominium and inheritance, it is often true that “those who take care, stay; those who disappear, lose”.
In your family, is there someone occupying a common property alone? What measures have you adopted — or plan to adopt — to avoid litigation and the silent loss of assets?
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