A usucapião dos bens que compõem a herança, enquanto jacente: uma análise da natureza jurídica da declaração de vacância.

Abstract

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.