Notarial Deed for Extrajudicial Adverse Possession Guide

The notarial deed of fact for extrajudicial adverse possession attests possession and occupancy duration before the notary office.

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Por Equipe CartorIA — Redação jurídica assistida por IA · 5º Tabelionato de Notas de Recife

Note: This content describes Brazilian notarial law.

Notarial Deed of Fact for Extrajudicial Adverse Possession: Requirements, Witnesses, and On-Site Inspection

Understand the notarial deed of fact for extrajudicial adverse possession: requirements, witnesses, notary inspection, and documents required.

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This article answers

  • What is the notarial deed of fact for extrajudicial adverse possession and what is it used for?
  • Who can request the notarial deed of fact for extrajudicial adverse possession at the notary office?
  • What documents are required to draft the notarial deed of fact for extrajudicial adverse possession?
  • How does the on-site inspection and witness hearing by the notary work?
  • How much does it cost and how long does it take to issue the notarial deed of fact for extrajudicial adverse possession?

In summary

  • The notarial deed of fact for extrajudicial adverse possession (ata notarial para usucapião extrajudicial) is the public instrument in which the notary attests facts proving continuous, peaceful possession and the duration of occupancy of a real estate property.
  • The document is a mandatory requirement Lei nº 6.015/1973, art. 216-A to support the application for declaration of adverse possession directly before the real estate registry officer (oficial de registro de imóveis).
  • The notary public (tabelião de notas) may conduct an in-person inspection at the property and hear neighbors and witnesses to certify the ascertained facts.
  • The notarial deed of fact does not transfer property ownership on its own; it constitutes pre-constituted evidence for subsequent qualification by the real estate registry officer.

What is the notarial deed of fact for extrajudicial adverse possession and what is it used for?

The notarial deed of fact for extrajudicial adverse possession (ata notarial para usucapião extrajudicial) is a public instrument drawn up by a notary public (tabelião de notas) that documents witnessed or ascertained facts regarding the possession of a property. The notary acts with public faith Lei nº 8.935/1994, art. 1º, recounting the occupancy of the asset in detail.

This instrument serves as central evidence of the right to adverse possession. The real estate registry officer requires this proof to process the transfer of ownership administratively, without the need for a lawsuit Lei nº 6.015/1973, art. 216-A. To understand the entire regularisation flow, read our article on Usucapião Extrajudicial: Etapas e Requisitos no Cartório.

The notarial deed of fact for extrajudicial adverse possession materialises the factual reality of possession. The act reports the absence of opposition, the boundaries of the land, the presence of structures, and the duration during which the applicant has exercised possession as if they were the owner (animus domini).

Having full evidentiary weight Lei nº 10.406/2002 — Código Civil, art. 215, the notarial deed of fact for extrajudicial adverse possession reduces uncertainties in the extrajudicial procedure. It guarantees legal certainty for the notary, the real estate registrar, and society.

Who can request the notarial deed of fact for extrajudicial adverse possession at the notary office?

Any natural or legal person who exercises possession over a property and wishes to acquire it by adverse possession may request a notarial deed of fact for extrajudicial adverse possession. The request must be made at the notary office (tabelionato de notas) of the municipality where the property is located.

The applicant must be accompanied by an attorney or public defender, as legal representation is mandatory in the extrajudicial adverse possession procedure Lei nº 6.015/1973, art. 216-A. The legal professional directs the notarial request based on the requirements of the specific modality of adverse possession intended.

In the case of possession exercised by a married couple or partners, both spouses or informal partners must appear in the notarial deed of fact for extrajudicial adverse possession, depending on the marital property regime. If possession was transmitted by inheritance, the successors may also add the duration of possession of their predecessors.

What documents are required to draft the notarial deed of fact for extrajudicial adverse possession?

To draft the notarial deed of fact for extrajudicial adverse possession, you must present a consistent set of evidence to the notary office. The documents must prove the origin, continuity, and peaceful nature of the property's occupation.

Personal and technical documentation

You must provide identification documents, CPF (individual taxpayer registry), an updated civil status certificate, and proof of residence. For rural properties, you must present the registration of the property in the environmental and land registries. See more in Usucapião Extrajudicial Rural: CCIR e CAR São Obrigatórios?.

Technical documentation requires a plot plan of the property and a descriptive memorandum signed by a qualified professional, accompanied by the Technical Responsibility Note (ART) or Technical Responsibility Registration (RRT). These documents delineate the exact occupied area.

Proof of possession and clearance certificates

You must gather utility bills for water and electricity, IPTU (urban property tax) or ITR (rural property tax) receipts paid over the years, receipts for improvements, and private contracts. Older documents help establish the starting point of possession.

Civil clearance certificates (certidões distributivas cíveis) from the State and Federal Courts of the property's judicial district (comarca) and of the applicant's domicile are also required. These certificates prove that possession is unblemished and free from judicial dispute throughout the period required by law.

How does the on-site inspection and witness hearing by the notary work?

Conducting an on-site inspection is one of the most relevant steps in the notarial deed of fact for extrajudicial adverse possession. The notary public or their authorized deputy clerk travels to the subject property to observe the factual reality.

During the inspection, the notary observes the area's infrastructure, the state of improvements, the presence of walls or fences, and effective occupation by the possessor Lei nº 8.935/1994, art. 6º. The notary also records photographs and geographical data of the site.

The hearing of witnesses and adjacent owners (confrontantes) may take place during the in-person inspection or at the notary office itself. Witnesses declare, under penalty of law, whom they recognize as the owner of the property and how long they have observed this occupancy.

The notary records the instrument by taking statements from bordering neighbors and long-time residents of the area. This notarial finding grounds the conviction of the real estate registry officer in the subsequent registration stage. If you wish to compare this avenue with other property regularisation procedures, consult Usucapião e Adjudicação Compulsória Extrajudiciais | Guia.

How much does it cost and how long does it take to issue the notarial deed of fact for extrajudicial adverse possession?

The cost of a notarial deed of fact for extrajudicial adverse possession is fixed by state legislation. The fees (emolumentos) are listed in the official state fee schedule and depend on the appraisal or tax assessment value of the property subject to adverse possession.

There are no fixed national values for notary acts. In addition to the fees for the notarial deed of fact for extrajudicial adverse possession, the applicant must consider travel expenses for the on-site inspection, where provided for by the state fee table.

The time required to complete and issue the notarial deed of fact for extrajudicial adverse possession usually ranges from 5 to 15 business days. This timeframe begins upon full delivery of documentation and completion of the inspection and witness hearings by the notary office.

Risks of an incomplete notarial deed or one without on-site verification

A notarial deed of fact for extrajudicial adverse possession prepared without proper technical rigor may be rejected during qualification by the real estate registry officer. Omitting essential data regarding possession results in a requirement note (nota devolutiva) from the real estate registry.

If the notary fails to take statements from qualified witnesses or fails to describe improvements accurately, the registrar may demand supplementary inquiries. This delays the procedure and increases costs for the citizen.

False statements made to the notary during the preparation of the notarial deed of fact for extrajudicial adverse possession constitute the crime of false declaration (falsidade ideológica). The notary act carries public faith and ensures legal certainty for third parties and adjacent landowners.

Checklist of documents

  • [ ] Identification documents (RG and CPF) or corporate constitutional documents for legal entities.
  • [ ] Updated marriage certificate or informal union certificate with property regime annotation.
  • [ ] Property plan and descriptive memorandum with ART or RRT from the responsible professional.
  • [ ] Proof of continuous possession (IPTU, ITR, water and electricity bills, and receipts).
  • [ ] State and federal civil clearance certificates from the location of the property and domicile.
  • [ ] List of witnesses with full qualification details and identification of adjacent neighbors.
  • [ ] Property registration certificate (matrícula or transcrição) of the property (or certificate of non-location of record).

Practical examples

Case 1: Regularisation of urban property with consolidated residential possession

Carlos had occupied a home in Recife for 16 years without formal legal title. He sought an attorney and filed a request at the notary office to prepare the notarial deed of fact for extrajudicial adverse possession. The deputy clerk visited the property, took photos of the building, confirmed installed public utilities, and interviewed two long-time neighbors. With the notarial deed in hand, the application was submitted to the real estate registry officer and successfully obtained property registration.

Case 2: Adverse possession of commercial property with chain of possession

A company purchased a commercial establishment from a family that had held possession for 12 years and remained on site for another 5 years. To prove the tacking of possession (soma de posses), the notarial deed of fact for extrajudicial adverse possession collected statements from previous possessors and attached notarized private contracts. The on-site inspection confirmed continuous business activity. The notarial deed instructed the procedure at the real estate registry and secured the opening of a new property ledger page (matrícula).

Common errors

  • Confusing registry office jurisdiction: Requesting the registration of ownership directly at the notary office (tabelionato de notas).

How to avoid: The notarial deed of fact for extrajudicial adverse possession is drafted at the notary office (tabelionato de notas); the adverse possession petition and transfer of ownership take place at the real estate registry office (registro de imóveis).

  • Failing to involve an attorney in the procedure: Appearing at the notary office without legal representation.

How to avoid: Representation by an attorney or public defender is a legal requirement Lei nº 6.015/1973, art. 216-A in all phases of extrajudicial adverse possession.

  • Presenting witnesses who do not know the history of possession: Indicating close relatives or individuals living far from the property.

How to avoid: Present adjacent neighbors or long-time neighborhood residents who personally know the daily routine of the property.

  • Technical documentation misaligned with actual possession: Presenting a descriptive memorandum incompatible with boundaries observed during inspection.

How to avoid: Ensure that the engineer or surveyor performs an exact measurement of the property prior to the notarial inspection.

  • Omitting clearance certificates showing active cases: Failing to clarify old court proceedings regarding possession.

How to avoid: Obtain explanatory court certificates (certidões explicatórias) for all listed lawsuits before requesting the notarial deed of fact for extrajudicial adverse possession.

Frequently asked questions

What is the notarial deed of fact for extrajudicial adverse possession and what is it used for?

The notarial deed of fact for extrajudicial adverse possession is a public instrument drawn up by a notary public that attests to the truthfulness of possession, its duration, and its characteristics. It serves as indispensable pre-constituted evidence for the adverse possession petition submitted to the real estate registry officer.

Who can request the notarial deed of fact for extrajudicial adverse possession at the notary office?

Any possessor, accompanied by their attorney or public defender, may request the drawing up of a notarial deed of fact for extrajudicial adverse possession at the notary office of the municipality where the property is located.

What documents are required to draft the notarial deed of fact for extrajudicial adverse possession?

Required items include applicant identification documents, proof of duration of possession (such as utility bills, tax receipts, and payment proofs), a property plan and descriptive memorandum signed by a qualified professional, civil clearance certificates, and a list of witnesses or adjacent owners.

How does the on-site inspection and witness hearing by the notary work?

The notary or authorized deputy clerk travels to the subject property to personally verify occupancy, improvements, and boundaries. In addition, the notary hears witnesses and neighbors at the site or office, taking statements certifying unposed possession over time.

How much does it cost and how long does it take to issue the notarial deed of fact for extrajudicial adverse possession?

Fees are established by state law and vary according to the official state fee schedule and property valuation. Completion time ranges between 5 and 15 business days following full submission of documentation and completion of the on-site inspection.

Next steps

  • Gather all proof of possession, paid bills, tax receipts, and photos of the property over time.
  • Hire a qualified professional (engineer or land surveyor) to prepare the property plan and descriptive memorandum.
  • Consult an attorney or public defender to draft the reasoned adverse possession petition.
  • Schedule an appointment at the notary office of the property's municipality to request the notarial deed of fact for extrajudicial adverse possession.
  • After the deed is issued, submit the complete application to the competent real estate registry office.

Editorial team: CartorIA and Notarial Staff of the 5th Notary Office of Recife (5º Tabelionato de Notas do Recife)

Date of last legal review: October 24, 2024

Regulatory scope: Grounded in Lei nº 6.015/1973, Lei nº 8.935/1994, and Provimento CNJ nº 149/2023

Institutional disclaimer: This content is strictly educational and informative. It does not replace direct consultation with notary offices or personalized legal guidance provided by an attorney or public defender for specific cases.

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