A possibilidade de usucapião de terrenos de marinha não demarcados e o exercício da função social da propriedade

Abstract

The right of ownership is essential for contemporary society, serving as a tool for personal and professional achievement of many people. The property, protected by the Federal Constitution as a fundamental right, should not only function as a means of accumulation of wealth, but also as a means to the achievement of several other goals, such as housing and employment. Thus, by constitutional requirement, it must exercise what is conventionally called social function, which is nothing more than the power and duty of exercising a social purpose. In the same sense, but without the legal protection that has the property, by doctrinal construction and adopted by the jurisprudence of various courts, the institute of possession shall exercise the same social role, functioning as a facilitator to access the property. In this context the need to exercise social function appears to adverse, originated in Roman law, which is the legal institute by means of which the possessor of a well acquires the right to property as a result of the exercise of possession qualified by factors required by legal devices. After, understood that the dynamic social-legal ownership of a person being transferred to another as a result of the exercise of possession, it will analyze the way in which these institutes may be applied, in particular the adverse, in the face of the Union as regards the areas that correspond to the land of the navy, but has not yet passed through demarcation process by administrative omission, as well as its consequences for the public administration and the private individual who will be able to request to the extent that there was the incorporation of the public equity. To do this, it will be done analysis of marine land demarcation, the procedure and the consequences of non-exercise of such obligations, researching also the consequences after the demarcation for one who already had the title of the owner. From this, it is that the adverse works as a tool for enforcing rights, should focus on public goods including possibly, but not incorporated, ensuring the least favored the right to property, to housing, to work, seeking to minimize the marginalization and showing as an instrument of social justice. The applied methodology will be developed through the study of jurisprudence and the literature, having as main instruments books, articles, data from official sites and jurisprudence of courts, promoting analytical and descriptive study, with the objective to describe, explain, interpret and questioning.