A mitigação do direito real de habitação na jurisprudência do STJ: as razões de decidir do RESP 2.151.939/RJ

Abstract

The institute of the real right of habitation, provided for in article 1.831 of the Brazilian Civil Code, whose primary purpose is to protect the surviving spouse or partner who, upon the death of the deceased, has the right to remain residing in the property that served as the couple's home, regardless of the property regime adopted by the partners at the time of the marriage or stable union. Thus, the study examines the issue of the potential mitigation of this real right, once considered absolute, and the measures that need to be taken to ensure its fair application in specific cases. In this regard, it analyzes the fundamental right to property when placed in direct opposition to the right to inheritance, as well as the possibility of balancing these rights to reach a fairer conclusion that serves the common good. Therefore, when determining that the aforementioned rights cannot coexist in a given case, the judge must conduct a balancing judgment, considering the specific circumstances of the case. This approach was adopted by the Superior Court of Justice (STJ) in the judgment of Special Appeal (RESP) 2.151.939/RJ. The methodology used was deductive, based on a literature review, analyzing dissertations, scientific articles, and legal doctrines, in addition to case law research on the websites of the Superior Court of Justice and the Federal Supreme Court, covering the period from 2018 to 2024. This timeframe was chosen due to emerging demands that required a different interpretation from the one previously applied. At the conclusion of the study, it is observed that, at present, it is up to the judges to effectively carry out this balancing judgment, given the existence of a legislative gap that allows for the consideration of external factors beyond the literal interpretation of the law in determining the applicability of the real right of habitation in specific cases.