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The auction judicial and the principle of continuity: your qualifications as mode of acquisition of property

Grant number: 14/21847-4
Support type:Scholarships in Brazil - Scientific Initiation
Effective date (Start): January 01, 2015
Effective date (End): December 31, 2015
Field of knowledge:Applied Social Sciences - Law - Private Law
Principal researcher:Cíntia Rosa Pereira de Lima
Grantee:Guilherme Galhardo Antonietto
Home Institution: Faculdade de Direito de Ribeirão Preto (FDRP). Universidade de São Paulo (USP). Ribeirão Preto , SP, Brazil

Abstract

The Law No. 6015/1973, in force since 1st. January 1976 establishes the regime of public records pertaining to services provided by civil legislation to authenticity, safety and efficiency of legal acts. What matters for the present work is the Real Estate Registry (arts. 167-199 of Law No. 6,015 / 73), more precisely on its master support column that is the principle of continuity or principle of prior record, which ensures permissibility of the transmission or the encumbrance of law, and thus ultimately transform it into an uninterrupted chain link of points, each of which binds to its antecedent, as his subsequent will bind to it later. Thanks to this the Real Estate Registry inspires public confidence. The Property Registry Brazilian establishes a typology of acts that can be registered (art. 167, I) and actions that can be recorded (167, II).Learns Property Registration, studying its principles, such as the priority is granted to the first that features the title to prenotação), the Instance (the registrant does not act ex officio, only upon the initiative of interested parties), the availability (which follows from the general idea that anyone transferring more rights than it has), the principle of enforceability, territoriality, legality and many others of equal importance, highlighting the aforementioned continuity of essential observance in all actions concerning the real rights, except for the usurpation and dispossession that are without any discussion acquisitions originate. According to the best definition of Afrânio de Carvalho, continuity is the principle that rests on the specialty, and to say that, for each property, appropriately individualized, there must be a chain of entitlements in sight which will only enrollment a right if the grantor it appears on record as proprietor. That said, this principle is directly linked to the controversy between classification so derived or original acquisition through letter of judicial auction, because depending on the understanding of one or another way, the principle of continuity is denied and so a break occurs in the chain entitlements property. We must remember, however, two exceptions to this principle: regarding adverse possession and dispossession, which are called originating acquisitions. In this two cases is abundant doctrine and jurisprudence in the sense that there is a notifier that performs the transfer of the property. There is no link between the previous owner of the domain, and the owner who acquires the property, thus leading to a break in the chain holder of the property, as stated above. Faced with this question, we observe progressive and numerous controversies and controversial situations and, consequently, the vast development of contradictory jurisprudence. In this sense, the objective of this work is to promote a comprehensive and systematic study of those principles and its connection with the polemic spot mentioned above, surgically deepening the relationship and breach of it, if it opts for being against land acquisition by judicial auction auctioned public, a way of derivative or original acquisition. The research will address the analysis of the case law in São Paulo and in the study of the work of national and foreign jurists under the registral real estate law, promoting a critical assessment of the results found having sight of the principles that guide a system of public records that meets your role to ensure legal and social security. Added to this study, analysis of judgments of Court of Justice of São Paulo and doubt proceedings which have as central to the discussion on the consideration of the letter of auction as a originating or derived mode of acquisition of property and its respect or breach of the principle of registral continuity.

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