THE ACTUAL HOUSING RIGHTS AND ITS POSSIBLE RELATIVIZATION IN THE BRAZILIAN INHERITANCE LAW: FIRST REFLECTIONS

Abstract

This article aims at raising the issue of structure (what is it? How is it?) and function (who is it for? What is it for?) of the actual housing rights, provided by Article 1.831 of the Brazilian Civil Code, in conjunction with Articles 1.225, VI, 1.414-1.416 of the Brazilian Civil Code, as well as Article 7th of Law number 9.287/1996 (which regulates the stable union), in order to respond to the following problematic issue: is it possible to relativize this institution, giving the possibility of combining the rights of the spouse or life partner, who is still alive, with the rights of the heirs, regarding the real state property established by the actual housing rights? Out of this problematic issue, two hypothesis emerge and they will be discussed throughout this text: (i) the theoreticalpractical construction of the actual housing rights is correct, with no possibility of relativizing it in an actual case; (ii) the theoretical practical construction of the actual housing rights cannot prevent its relativization, in order to protect fundamental rights of the heirs, as long as it does not violate the living spouse’s (or life partner’s) rights. The answer to these two hypothesis goes through the construction of the state of the art institution in Brazil, including the 24 (twenty-four) Justice Supreme Court rulings, which relate to this issue. Therefore, a method and a methodology must be used, ones that are focused on rein forcing the path towards the edifcation of the presented exam, highlighting the impermanence of any legal discussion, for it will always be possible to have a diverse eye on the themes alluded here. The method chosen for this article blends deduction and induction, having as ‘prius’ theoretical statements of general character, applicable to each concrete case verifed in a deductive way. Such elements, inductively, may reproduce the need of remeaning (or not) of the legal institutions researched for each real situation. Making the method explicit, the methodology and the approach also become clear. The frst one will use the monographic procedure, with the analysis of papers related to the issue. The second will be based on a critical methodological line, supported by a critical theory of the reality, which understands Law as a complex problem of languages and meanings. The conclusion to this article states that the relativization of the actual housing rights is possible, every time it oppresses, in a concrete case, the heirs, and this relativization maintains a decent housing for it sholder.