Reivindicatory Actions and Possessory Actions: Key Differences and When to Use Each

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

A reivindicatory action (ação reivindicatória) and a possessory action (ação possessória) are two distinct court remedies. The first protects an owner who has lost possession of real property. The second protects a possessor against interference with, dispossession from, or threats to possession.

Reivindicatory action: protecting ownership

The reivindicatory action is the procedural tool an owner uses to recover real property from anyone who holds it unjustly. Provided for in Article 1.228 of the Civil Code, this action requires the plaintiff to prove three basic elements: title to the property (shown through the registration record, or matrícula, at the real estate registry), identification of the property (a precise description of the asset being claimed), and the defendant’s unjust possession (occupation without legitimate title).

The reivindicatory action is the broadest remedy for protecting ownership, and it is not subject to a statute of limitations as long as the owner keeps title. This right does have limits, however, in adverse possession (usucapião). If the possessor meets the legal requirements to acquire the property by adverse possession, the reivindicatory action will fail, because the possessor will have acquired ownership by original acquisition.

The case follows the ordinary procedure, and the parties may present documentary evidence, expert evidence, and witness testimony. The plaintiff must submit an up-to-date matrícula for the property and show that the defendant occupies it without legitimate authorization. A judgment in the plaintiff’s favor orders the property returned to the owner and may also award damages if the property has deteriorated.

Possessory actions: protecting possession

Possessory actions protect possession, regardless of any dispute over ownership. The Code of Civil Procedure provides for three types of possessory action, depending on how serious the interference with possession is: repossession (reintegração de posse), used against dispossession, when the possessor is completely deprived of possession; maintenance of possession (manutenção de posse), used against disturbance, when possession is interfered with but not entirely lost; and the prohibitory injunction (interdito proibitório), used against a threat of dispossession or disturbance.

The plaintiff in a possessory action must prove their possession, the date of the disturbance or dispossession (or of the threat), the continuation of possession (in a maintenance action) or the loss of possession (in a repossession action), and the disturbance or dispossession committed by the defendant. Proof of ownership is not required. Tenants, borrowers under a loan for use (comodato), usufructuaries, and any other direct possessor may bring possessory actions.

The plaintiff must submit an up-to-date matrícula for the property and show that the defendant occupies it without legitimate authorization.

If the disturbance or dispossession occurred less than a year and a day ago, the action follows the special procedure, which allows for a preliminary injunction restoring or maintaining possession. If more than a year and a day has passed (so-called “old possession”), the action follows the ordinary procedure, and the special procedure’s preliminary injunction is not available, although an urgent-relief order may still be requested under the general procedure.

Key differences between the two actions

The main difference lies in the legal basis. The reivindicatory action rests on the right of ownership (ius possidendi), while the possessory action rests on the fact of possession (ius possessionis). This has important practical consequences. In a reivindicatory action, the question is who owns the property. In a possessory action, the question is who had possession and whether that possession was violated.

Another important difference is that possessory actions follow the principle of fungibility: the judge may grant a form of possessory protection different from the one the plaintiff requested, depending on what the case record shows. If the plaintiff asks for maintenance of possession but dispossession is proven, the judge may order repossession instead. This fungibility does not apply to the reivindicatory action.

As for evidence, the reivindicatory action requires documentary proof of ownership (the matrícula). The possessory action allows broad evidence of how possession was exercised, including witness testimony, photographs, proof of tax payments, and utility bills. Under Article 557 of the CPC (Code of Civil Procedure), debating ownership is not allowed within possessory actions.

When to use each action

A reivindicatory action is appropriate when the owner (with title registered at the notary and registry office) needs to recover property from someone who occupies it without legitimate title. It is the right path when the owner never had possession, or lost it long ago, so that no recent dispossession has occurred.

Possessory actions are appropriate when possession has recently been violated, whether or not the plaintiff is the owner. A tenant whom the landlord keeps out of the property, a possessor whose land has been invaded by neighbors, a usufructuary whose exercise of that right is disturbed: all of them can use possessory actions.

In practice, an owner may choose a possessory action instead of a reivindicatory one, especially when the dispossession is recent and a preliminary injunction is possible. The choice depends on the circumstances of the case, how urgent the relief is, and the litigation strategy adopted.

Frequently Asked Questions

Can a possessor win a reivindicatory action brought by the owner?

Yes, in some situations. The most common defense is adverse possession. If the possessor proves that they meet the requirements to acquire the property by adverse possession (peaceful, uncontested, uninterrupted possession for the legal period), the reivindicatory action will be dismissed. In addition, Article 1.228, paragraphs 4 and 5, of the Civil Code provides for what is known as private judicial expropriation (desapropriação judicial privada). Under it, the judge may deny the claim if the property is a large area occupied in good faith by a considerable number of people who have carried out works and services of significant social and economic interest there.

Which action should I use when a neighbor encroaches on part of my land?

If the encroachment is recent (less than a year and a day), the possessory action for repossession is the most suitable and fastest route, because it allows you to obtain a preliminary injunction. If the encroachment is old and you hold registered title to the area encroached upon, you may choose the reivindicatory action. In both cases, expert evidence (a measurement by a surveyor) will be essential to define the area actually encroached upon. If there is uncertainty about the boundaries between the properties, a boundary demarcation action (ação demarcatória) may be more appropriate.

Can a reivindicatory action be combined with a claim for compensation?

Yes. The owner may combine the request for return of the property (the reivindicatory claim) with claims for compensation, such as damages for harm done to the property, compensation for the defendant’s use of it (improper use of the property, equivalent to its rental value), and reimbursement of expenses necessary to restore the property to its prior condition. A good-faith possessor is entitled to reimbursement for necessary and useful improvements and may exercise a right of retention until payment is made. A bad-faith possessor, on the other hand, must compensate the owner for the fruits harvested and for any deterioration of the property.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.