Property possession · SPD Advocacia

Property invaded, occupied or not being returned? See the right path

Repossession, maintenance of possession, prohibitory injunction, entry into possession and eviction. Understand which action fits your case, as owner, buyer, landlord or possessor, and send your request to the team.

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What is your case?

Each situation has its own path in the courts

The type of lawsuit depends on how the property left your hands and on your relationship with it. Choosing well avoids wasted time.

They invaded or took the property

Repossession

For those who had possession and lost it. If the action is filed within 1 year and 1 day of the invasion, the judge can order the property returned right at the start, without hearing the other party.

CPC, arts. 558, 560 to 562

They threaten to invade or interfere with use

Action to maintain possession or prohibitory injunction

For those still in the property but facing disturbance, or with a serious fear of an invasion. The judge can prohibit the act and set a fine if it is disobeyed.

CPC, arts. 560 and 567

I'm the owner, but I've never been inside the property

Taking possession

For those who bought or received the property and cannot occupy it because the seller, a former occupant or someone else is still there. The basis is ownership.

Civil Code, art. 1,228

I bought it at auction

Taking or recovering possession after the auction

In a judicial auction, the certificate of sale is issued with the writ of possession. In an auction of a financed property under fiduciary lien (alienação fiduciária), the law provides for preliminary repossession, with 60 days to vacate.

CPC, art. 901, § 1; Law 9,514/1997, art. 30

I rented it out and the tenant won't leave

The action is for eviction

If there is a lease, the law requires the landlord to use an eviction action, whatever the reason the contract ended. In many cases an injunction can order the property vacated within 15 days. See eviction and rent collection.

Law 8,245/1991, arts. 5 and 59, § 1

I lent it and they won't return it

Repossession after the notice

When the property was lent free of charge to a relative, friend or former partner, the first step is usually a notice to return it within a set period. If the person does not leave, repossession is generally available.

Free loan of property (comodato)

Owner or landlord

What changes depending on your position

If you are the owner

A possessory action is about who has possession, not who owns the property. Someone who was already occupying it and was removed asks for repossession. Someone who never had possession uses an action to take possession or a recovery action (ação reivindicatória), which are based on the deed and the property registration.

If you are the landlord

As long as there is a lease, even an expired one, the route is eviction. Repossession applies when the occupant is not the tenant, for example someone who moved in after the tenant left.

Sources: CPC, art. 557, sole paragraph; Civil Code, arts. 1,210, § 2, and 1,228; Law 8,245/1991, art. 5.

Do not remove the person by force, change the locks or cut off water and power on your own. The law only allows an immediate response, limited to what is necessary, right after the invasion (Civil Code, art. 1,210, § 1). Beyond that, the safe path is the courts. This page provides general information and does not replace an analysis of your case.

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Answer the questions, one at a time. At the end you can attach photos and documents, which go straight to a folder in the firm's Drive, and send the summary via WhatsApp.

Common questions

Frequently asked questions

I chose the wrong action. Do I lose the case?

Among possessory actions, the judge can grant the correct protection even if a different one was requested, as long as the requirements are proven (CPC, art. 554). Between possessory action, action for possession and eviction, however, the choice must be right from the start, which is why prior analysis is important.

More than 1 year and 1 day have passed since the invasion. Can I still act?

Yes. The action is still possessory, but it follows the ordinary procedure, and the injunction depends on the general urgency requirements (CPC, art. 558, sole paragraph). The more time passes, the harder it gets, and there is a risk the occupant will claim adverse possession.

The property is in the name of a relative who has passed away. Can I file the lawsuit?

It may be possible, through the estate or the heirs, depending on the status of the probate (inventário). Mention this in the form.

What documents should I gather?

Updated property registration or deed, purchase, lease or loan agreement, IPTU and bills in your name, photos and videos of the property and of the occupation, police report, notices sent and conversations with the occupant.

The property is in another city. Does the service work?

Yes. The firm serves clients throughout Brazil and abroad, via WhatsApp and video calls.