Property Law Terms in Brazil

Introduction

This glossary defines key terms in Brazilian property law. These concepts are essential for understanding the Civil Code of 2002’s regulation of possession, ownership, and real rights in property.

Usucapião

Adverse possession (usucapião) is the acquisition of ownership through continuous, peaceful, and unchallenged possession for a statutory period. The Constitution and Civil Code recognize several forms:

• Ordinary usucapião: 10 years (movables: 3 years) with just title and good faith
• Extraordinary usucapião: 15 years (5 years with residence or productive improvements)
• Special urban usucapião (Constitution, Article 183): 5 years for urban property up to 250 m²
• Special rural usucapião (Constitution, Article 191): 5 years for rural property up to 50 hectares
• Family usucapião (Civil Code, Article 1,240-A): 2 years for the spouse abandoned in the marital home

Posse

Possession (posse, Article 1,196, Civil Code) is the exercise, in full or in part, of the powers inherent to ownership. Brazilian law adopts elements of both Savigny’s subjective theory (possession requires animus domini) and Ihering’s objective theory (possession is the external manifestation of ownership). The 2002 Code favors Ihering’s approach.

Possession is classified as: (i) direct (direta) and indirect (indireta); (ii) in good faith (de boa-fé) and in bad faith (de má-fé); (iii) just (justa) and unjust (injusta).

Propriedade

Ownership (propriedade, Article 1,228, Civil Code) is the comprehensive real right conferring the powers to use (usar), enjoy (gozar), dispose (dispor), and recover (reivindicar) property. Ownership must fulfill its social function (Article 5, XXIII, Constitution). The owner may recover possession through the reivindicatory action (ação reivindicatória).

Servidão

Easement (servidão, Articles 1,378-1,389, Civil Code) is a real right over another’s property (prédio serviente) for the benefit of a dominant estate (prédio dominante). Easements may be: (i) apparent (aparente), requiring registration; or (ii) non-apparent (não aparente), established by contract or will.

Hipoteca

Mortgage (hipoteca, Articles 1,473-1,505, Civil Code) is a real right securing a debt with immovable property, registered in the Real Estate Registry. The mortgagee retains possession. If the debtor defaults, the creditor may foreclose. The law establishes priority among multiple mortgages based on registration order.

Bem de Família

Family home (bem de família, Articles 1,711-1,722, Civil Code; Law 8.009/1990) is the property designated as the family’s residence, protected from seizure for most debts. Law 8.009/1990 provides that the family residence is unseizable (impenhorável), regardless of registration, with limited exceptions for labor debts, property taxes, and debts related to the property itself.

Direito de Superfície

Surface right (direito de superfície, Articles 1,369-1,377, Civil Code) is the right to build or plant on another’s land, granted by the owner. The surface right may be for a fixed or indefinite term and is transferable.

Usufruto

Usufruct (usufruto, Articles 1,390-1,411, Civil Code) is the right to use and enjoy another’s property (nu propriétaire), preserving its substance. The usufructuary must: (i) use the property as a diligent head of household; (ii) maintain it; and (iii) pay taxes. Usufruct may be for life or for a fixed term.

Condomínio Edilício

Condominium ownership (condomínio edilício, Articles 1,331-1,358, Civil Code) is the legal regime for multi-unit buildings with individually owned units and common areas. The Condominium Code governs: (i) unit owners’ rights; (ii) common areas; (iii) administrative structure (general assembly, syndic); (iv) fees; and (v) dispute resolution.

Registro de Imóveis

Real Estate Registry (Registro de Imóveis) is the public registration system recording title and encumbrances on real property. Registration is generally constitutive for the creation of real rights, meaning rights are acquired only upon registration. The folio system (matrícula) provides a complete legal history for each property.