Thoughts on the overcoming of rights of formal titleholders in face of precarious possession and the intervention of possession

Abstract

The present paper analyzes whether it is possible to overcome the rights of formal titleholders in case there is a situation of precarious possession. Initially, by a historical approach, we explore the legal doctrine on the subject, which established that violent and clandestine types of possession could lead to the purposes of acquisitive prescription without title, a situation that is the opposite of precarious possession, which would not lead to such outcome. In this sense, we shall conduct an analysis of the provisions of the Brazilian Civil Code in order to review the differences between the existing vices in case of possession. The study mainly focus on Article 1208 of the Civil Code, which establishes that either violent or clandestine acts do not authorize the acquisition of possession before the violence or clandestine has ceased. According to some scholars, since such provision does not mention precarious possession, this type of vice would not lead to the overcoming of rights of the titleholder. Finally, this paper also investigates interversion of possession and the possibility to change causa possessionis.