Usucapião familiar: a análise do abandono do lar sob a ótica do animus domini e a hodierna aplicação jurisprudencial

Abstract

The present paper aims to present a study about family cannulation and its legal requirements, with a particularized approach to the neuralgic point of this usucaption, that is, the abandonment of the home. Article 1.240-A of the Civil Code, established by Law nº. 12.424/2011, portrays the possibility of acquiring the whole of the property with 250 m², by exercising direct, exclusive, uninterrupted possession and without the other by the spouse or within two years. The great imbroglio of this usucaption refers to the condition of doing the same, by inferring itself in the analysis of the animus domini, both of the consort who remains in the good as to what left the home. Moreover, it has been argued repeatedly for the formal and material unconstitutionality of this mode of use, especially under the allegation of the return of guilt, abolished by Constitutional Amendment nº. 66/2010. Thus, as outlined, in spite of the clear advantages of the institute of family usucaption for the realization of the right to property, the modality under test brings an intense debate to the essay, which justifies the study of the theme, the continuity, still, in today's judicial jurisprudence.