LAJES LAW AND ITS IMPACT ON FAMILY LAW AND SUCCESSORY LAW

Abstract

The right of overhang is a legal institution considered a sui generis real right, distinct from surface rights and full ownership, as established by Article 1.510-A of the Civil Code. Historically, its emergence in Brazil is linked to informal occupation of urban space, especially in areas of high population density such as slums, where overhangs represent additional horizontal constructions on existing residences. The historical context of the right of overhang is related to disorderly occupation of urban areas, resulting from housing deficits and lack of effective public policies. Brazilian legislation was initially unclear regarding overhangs, leading to legal uncertainties for their occupants. With the introduction of the right of overhang in Brazilian civil legislation by Law nº 13.465/2017, new legal issues arose concerning divorce and inheritance rights. In the case of divorce, building a house on one spouse's land raises questions about the division of rights resulting from the construction. According to Article 1.255 of the Civil Code, the builder loses improvements in favor of the landowner but is entitled to compensation if acting in good faith. In inheritance law, the right of overhang has implications on inheritance and asset distribution, especially regarding the inclusion of overhang units in the inventory and asset assessment. Holders of the right of overhang may have inheritance rights over the units built on the overhang, requiring careful analysis to determine their distribution among heirs. In summary, the right of overhang has roots in the informal occupation of urban space in Brazil and influences legal issues related to divorce and inheritance, posing new challenges for legislation and legal practice in the country.