“A função social dos imóveis públicos desafetados: é possível superar o enunciado 619 da súmula de jurisprudência do Superior Tribunal de Justiça?”

Abstract

This dissertation critically analyzes the understanding consolidated by the Brazilian Superior Court of Justice in n.º 619 of its Jurisprudential Summary, according to which the unlawful occupation of public property constitutes mere detention, thereby excluding, under any circumstances, the recognition of possession and its legal effects. The research aims to identify the rationes decidendi of the precedents that gave rise to the aforementioned summary and their dogmatic foundations, in light of the system of precedents established by the Brazilian Code of Civil Procedure of 2015. Based on an individual analysis of eighteen special appeals decided between 2004 and 2016, the study demonstrates that the summarized understanding is essentially structured upon two premises: the impossibility of exercising possession over public property due to the constitutional prohibition of adverse possession, and the classification of any occupation lacking prior governmental consent as mere detention. The dissertation engages with contemporary theories of possession and with the constitutional principle of the social function of property, defending the conceptual autonomy of possession in relation to ownership and the need for a functional interpretation of possessory relations. With regard to public domain property that has been decommissioned and lacks a specific public purpose, it is argued that the recognition of possession exercised by private individuals is feasible, even in the absence of prior governmental authorization. This, in turn, entails the possibility of compensation for improvements and accessions, in light of the paradigm shift imposed upon Administrative Law by the Federal Constitution of 1988. Finally, the dissertation proposes the partial overruling of the summarized understanding.