Extinction of usufruct by non-use or non-fruition

Comments on the decision RESP 1.179.259/MG

Abstract

This work examines the extinction of usufruct by non-use or fruition, especially the problem that art. 1.410, VIII, of the Civil Code does not mention a minimum period of time. The analysis is structured as comments to the award issued by the Superior Court of Justice (STJ) in REsp 1.179.259/MG. At a lower level of jurisdiction, the Minas Gerais Appellate Court had said that art. 1.410,VIII contains a loophole, so that a time limit should be sought in other rules and analogically applied. However, the STJ ruled that the lack of a time limit is purposeful, aiming at facilitating the implementation of the social function of the property and shaping judicial decisions to concrete circumstances. Besides interpreting art. 1.410,VIII for the first time, the STJ showed Brazilian Courts’ answer the open model of the Civil Code.