Adverse Possession and Conversion of Possession: Commentary on Ordinance No. 9566 of 2024

Recently, Ordinance No. 9566 of April 9, 2024, from the Court of Cassation provided significant clarifications regarding adverse possession and conversion of possession. The ruling focused on the issue of whether a null donation deed can determine the conversion of detention into possession, a matter of great relevance for those working in the field of civil law.

The Regulatory Context

The Court examined a situation where a donation deed, although null due to lack of form, was considered potentially capable of giving rise to the possession necessary for adverse possession. According to Article 1158 of the Civil Code, adverse possession allows for the acquisition of ownership of an asset through continuous and uninterrupted possession for a certain period of time. However, for adverse possession to be applicable, the possession must be qualified, meaning it must derive from an act capable of transferring ownership.

The Ruling's Maxim

In general. In terms of adverse possession, a null donation deed, although incapable of transferring ownership, can constitute a suitable element to determine the conversion of detention into possession, such that the subsequent possession is suitable for adverse possession, without the need for any oppositional act by the holder against the possessor. (In this case, the Supreme Court overturned the lower court's ruling that had rejected the abbreviated adverse possession claim made by the holder based on the circumstance of the informal donation of the property by the original owner, which was a null donation due to the lack of a public deed, not admitting testimonial evidence on the matter, without considering that such informal donation, if effectively demonstrated, could have determined the conversion of possession in favor of the holder).

Reflections on the Ruling

The ruling under discussion highlighted how a null donation deed, if effectively demonstrated, can still influence the possession situation. This implies that, even in the absence of a valid transfer of ownership, the behavior of the parties can alter the dynamics of possession. The Court indeed overturned the judgment of merit that had not considered the importance of the informal donation, emphasizing that the absence of an oppositional act by the holder is a crucial element.

  • Importance of the conversion of possession for adverse possession.
  • Recognition of testimonial evidence in the context of informal donations.
  • Practical implications for future disputes regarding possession and adverse possession.

Conclusions

In conclusion, Ordinance No. 9566 of 2024 represents an important step forward in understanding the dynamics related to adverse possession and possession. It clarifies that even formally null acts can have legal relevance, paving the way for greater flexibility in possession disputes. It is essential for professionals in the field to consider these implications to better protect the interests of their clients.

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