Out-of-court adverse possession: how to regularize a property at the registry, without a lawsuit?

Anyone who has lived for years in a property that "is yours, but is not in your name" knows the distress: you cannot sell, finance, pledge as collateral or leave it as an inheritance with any security. Adverse possession (usucapião) solves this by recognizing the ownership of someone who holds prolonged possession — and, since 2015, it does not always require a drawn-out lawsuit.

Out-of-court (notarial) adverse possession takes this recognition to the registry, in a far more agile way. In this guide, you will understand how it works step by step, which documents are required, how long it usually takes, when it applies (and when the case has to go to court) — with a practical example in São Paulo.

What is out-of-court adverse possession and what is its legal basis?

Adverse possession is an original means of acquiring ownership: the law recognizes as owner whoever exercises possession of a property in a peaceful, uninterrupted manner and with the intent of an owner for the period of the applicable category. The possessor does not "buy" from the former titleholder — they acquire a new right by meeting the requirements.

Until 2015, this recognition depended on a lawsuit. Art. 1.071 of the Code of Civil Procedure changed this by inserting art. 216-A into the Public Records Act (Lei 6.015/73), creating the out-of-court route, carried out at the Real Estate Registry. It was regulated by CNJ Provision 65/2017 (now consolidated in the National Code of Standards) and refined by later statutes — Lei 13.465/2017, which began treating an abutting neighbor's silence as consent, and Lei 14.382/2022. The result is a faster path for those with no conflict over the property.

How does the step-by-step at the registry work?

The out-of-court procedure usually follows this sequence:

• 1. Notarial deed of facts: the interested party goes to a notary public, who draws up a deed of facts attesting to the duration and the characteristics of the possession (based on documents, statements and, at times, an inspection).

• 2. Survey and descriptive memorandum: a qualified professional (engineer or architect) prepares the property survey and memorandum, with an ART or RRT, also signed by the abutting neighbors.

• 3. Petition by an attorney: with the notarial deed of facts, the survey and the certificates, the attorney files the petition at the Real Estate Registry where the property is located.

• 4. Examination and notices: the registrar reviews the request and notifies the registered titleholders and the abutting neighbors who did not sign the survey, who have 15 days to respond — silence is treated as consent.

• 5. Notice to public bodies: the Federal Union, the State and the Municipality are notified, also with a period to respond.

• 6. Public notice: a public notice is published for any opposition by third parties.

• 7. Registration: where there is no objection, the registrar opens the property record (matrícula) (or registers it) in the possessor's name. Where there is a reasoned objection, the case is referred to court.

When is out-of-court adverse possession the best route?

The out-of-court route is suited to situations where there is no real conflict over the possession or the boundaries of the property — that is, where the neighbors and the former titleholder do not object. In these cases, it is faster and less wearing than a lawsuit. An important detail: because it is an original acquisition, adverse possession does not trigger ITBI (the real estate transfer tax), since there is no "purchase" from anyone.

There are also conveniences for apartments: when the unit is already described in the property record (matrícula), a new survey is dispensed with, and it is enough to notify the condominium (through its manager) as the abutting party (art. 216-A, §§ 11 and 12) — which is very common and practical in São Paulo. By contrast, where there is litigation over the property, or where an abutting neighbor/titleholder objects to the request, the route becomes the judicial one. For this reason, the first step is always to assess the case.

A practical example: the Tavares couple's apartment

The Tavares couple have lived for 12 years in an apartment in the East Zone of São Paulo. They bought it from the previous occupant by private agreement (an "unrecorded side agreement," a contrato de gaveta), never registered the deed, and today the seller can no longer be located. The apartment, however, already has an individualized property record (matrícula), and the Tavares family have years of utility bills, property tax (IPTU) and receipts in their names.

Because there is no conflict and the possession is long-standing and peaceful, the attorney opts for the out-of-court route: a notarial deed of facts is drawn up, a new survey is dispensed with (the unit is already described in the property record), and the condominium and the former titleholder are notified by public notice. Once the periods pass without objection, the Real Estate Registry transfers the property record into the Tavares family's name. What could have taken years in court was resolved in a few months — and without ITBI, since it is an original acquisition.

The most common (and costly) mistakes

• Assuming possession alone is enough. The request must be properly supported (notarial deed of facts, survey, memorandum, proof of possession) — weak supporting evidence stalls the procedure.

• Getting the survey and memorandum wrong. Discrepancies in measurements or the absence of the abutting neighbors' signatures lead to requirements and delays.

• Insisting on the out-of-court route when there is conflict. If there is a dispute over the property, the route is the judicial one; insisting only wastes time.

• Ignoring the abutting neighbors. Properly notifying the neighbors is the most sensitive point of the procedure.

• Confusing it with building regularization. A missing certificate of occupancy ("habite-se") or recording of construction is a different problem, resolved by another route.

Checklist: for a well-supported out-of-court adverse possession claim

• Gather proof of possession over time (utility bills, property tax/IPTU, contracts, photos).

• Identify the category of adverse possession and confirm that the period has been met.

• Engage the notarial deed of facts and the survey with memorandum (ART/RRT), signed by the abutting neighbors.

• Obtain the certificates for the property and from the registries.

• Check whether the property already has a property record (matrícula) (for an apartment, this may dispense with the survey).

• Rely on a real estate lawyer from the outset (a legal requirement and the key to success).

Frequently asked questions about out-of-court adverse possession

What is out-of-court adverse possession?

It is the recognition of adverse possession carried out directly at the Real Estate Registry, without a lawsuit. It was created by art. 1.071 of the Code of Civil Procedure, which inserted art. 216-A into the Public Records Act (Lei 6.015/73), and regulated by CNJ Provision 65/2017 (now part of the National Code of Standards). The request is filed by an attorney, based on a notarial deed of facts and a survey of the property, and, where there is no objection, the registrar opens the property record (matrícula) in the possessor's name.

What documents are required for out-of-court adverse possession?

The main ones are: the notarial deed of facts drawn up by a notary public (attesting to the duration and the characteristics of the possession); the property survey and descriptive memorandum signed by a qualified professional, with an ART or RRT, and also by the abutting neighbors; certificates from the registries and public bodies; and the petition signed by an attorney. Depending on the case, proof of possession (utility bills, property tax/IPTU, contracts) and personal documents are added. The exact list depends on the property and the registry.

How long does out-of-court adverse possession take?

It varies according to the complexity and the response of the abutting neighbors and public bodies, but it is usually much faster than the judicial route — generally a few months, against years for a lawsuit. The point that most affects the timeline is the notice: abutting neighbors and titleholders are notified and have 15 days to respond; silence is now interpreted as consent (Lei 13.465/2017), which has substantially sped up the procedure.

What happens if an abutting neighbor or the owner objects?

If there is a reasoned objection from an abutting neighbor, the registered titleholder or a public entity, the registrar cannot complete the recognition and refers the case to the judicial route, where the adverse possession will proceed as a lawsuit. For this reason, the out-of-court route is suited to situations with no real conflict over the possession or the boundaries of the property. Good prior work on the survey, descriptive memorandum and notices greatly reduces the risk of an objection.

Can out-of-court adverse possession be used for an apartment in São Paulo?

Yes. Apartments are fully compatible with the out-of-court route, and there are even conveniences: when the unit is already described in the property record (matrícula), preparing a new survey is dispensed with, and it is enough to notify the condominium (through its manager) as the abutting party. In São Paulo, where much of the real estate is held in condominium, this makes the procedure even more practical. Reviewing the case confirms which documents will be required by the competent Real Estate Registry.

Do I need an attorney for out-of-court adverse possession?

Yes, it is mandatory. The law requires the out-of-court adverse possession petition to be signed by an attorney, who represents the interested party before the registry, gathers the documentation, follows up on the notices and responds to any requirements raised by the registrar. Because the success of this route depends heavily on the quality of the supporting evidence (notarial deed of facts, survey, descriptive memorandum, proof of possession), relying on a real estate lawyer from the outset increases the chances of completing the request without having to go to court.

Regularizing at the registry is faster — when there is no conflict

Out-of-court adverse possession has transformed property regularization in Brazil: what once meant a long lawsuit has become, in many cases, a matter of months at the registry. For those with long-standing, peaceful possession and no conflict over the property, it is almost always the best route — faster, less wearing and free of ITBI.

The key to success lies in solid supporting evidence: a well-prepared notarial deed of facts, survey, memorandum and proof of possession, with the abutting neighbors properly notified. Where there is conflict, the route is the judicial one — and identifying this early avoids wasting time.

At Falchet e Marques Sociedade de Advogados, a firm in São Paulo (Av. Paulista), we handle out-of-court and judicial adverse possession — from assessing the case to the notarial deed of facts, the survey, the notices and the registration of the property record. If you live in a property that is not in your name, it is worth understanding whether your case can be resolved at the registry.

Talk to our team on WhatsApp: +55 11 95901-1854 — and find out whether your regularization can be done through the out-of-court route.