THE DIVISION OF POSSESSION IN BRAZILIAN LAWTHE DIVISION OF POSSESSION IN BRAZILIAN LAW

Abstract

The present article analyzes the complex phenomenon of possessory partition in the Brazilian legal system, both in the context of marital dissolution and hereditary succession. Based on the conception of possession as an autonomous right independent of ownership, the study examines the legal nature of possessory transmission and the specific challenges that arise when partition occurs in the absence of formal title. The research highlights the relevance of the topic in light of the Brazilian reality, where IBGE data reveal that 13.5% of people living in their own homes lack formal documentation, a rate that reaches 18.5% among the lower-income population. Through a dogmatic methodology, including bibliographic and case law analysis, the study identifies the influence of different property regimes on the division of possession and the multiple patrimonial consequences of this process, including the economic valuation of possessory rights, the division of fruits and improvements, and issues related to the possibility of land regularization. It concludes that the proper implementation of possessory partition requires an approach that transcends the traditional formalism of civil law, recognizing the social function of possession and its importance in the realization of fundamental rights, especially the right to housing and human dignity. In this regard, decisions such as the one issued in REsp 1.984.847/MG demonstrate the current judicial trend of recognizing the partition of possessory rights over unregistered real estate, postponing the discussion on ownership regularization and formalization to a later stage.