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.
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.
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 562Action 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 567Taking 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. 1,228Taking 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. 30The 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, § 1Repossession 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
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.
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.
Case review
Let's review your case
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.
