TORRES, M. J. L. C.; http://lattes.cnpq.br/1498147590095042; TORRES, Maria Jesk Laysa Costa.
Resumo:
The adverse possession is a legal acquisitive prescription, by filling the legal
requirements the possessor acquires the property. It is worth highlighting that the
public goods are imprescriptible, not liable to adverse possession. The (im)possibility
of the adverse possession of the inheritance while in abeyance relates to the legal
nature of the declaration of vacancy. The question of the theme confines itself to
know whether the heritage composing the estate in abeyance is a public good or not,
which is defined by the legal nature of the sentence that declares the vacancy. This is
the controversial point in Brazilian law, some argues the declaratory legal nature,
understanding that the effects of the declaration of vacancy is retroactive to the date
of the opening of the succession, applying the principle of the saisine to the State,
and, on the other hand, who understands that the declaration of vacancy has
constitutive legal nature, not retroacting to the opening of the succession since the
State is not provided in the order of the hereditary vocation. This way, having such
constitutive legal nature decision would not be possible the adverse possession of
the inheritance while in abeyance, since the equity would be considered a public
good since the opening of the succession, on the other hand, being the declaratory
legal nature the estate in abeyance would be liable to the adverse possession.
Through this work there is a seek to identify the legal nature of the declaration of
vacancy in the Brazilian succession process, as well as, particularly, to understand
the institute of the estate in abeyance and of the vacant inheritance, analyzing the
adverse possession in Brazilian law and the extent of its effects, and relate the legal
nature of the declaration of vacancy and its effects on the adverse possession of the
goods of the estate while in abeyance. In the analysis of the theme it was used the
deductive method how method of approach; the methods and functionalist
comparative monographic research how methods of procedure; and how technique
of the indirect documentation through the bibliographic research. The approach of the
abovementioned points, regardless of positions in contrary, it is observed that the
most certain is the impossibility of the adverse possession of the inheritance while in
abeyance, with the declaration of vacancy, it becomes a public good since the
opening of the succession, even the State not being the heir it must be applied the
principle of the saisine. It is contradictory in the Brazilian law the acceptance that the
inheritance is transferred to the public patrimony from the declaration of vacancy,
leaving the heritage with no owner in the abeyance period, contradicting one of the
most correct understanding of Brazilian law, which is, the non existence of the
patrimony with no owner.