Incorporação imobiliária: realização do direito fundamental à moradia

• Ano de defesa: 2019
• Autor(a) principal: Bruno Henrique Tenorio Taveira
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade Federal de Minas Gerais; UFMG
• Palavras-chave em Português: Direitos fundamentais; Incorporação imobiliária; Função social do contrato; Eficácia horizontal; Boa-fé objetiva; Direito à moradia; Direito civil
• Link de acesso: http://hdl.handle.net/1843/DIRS-BCDHTF

The purpose of the present study is to analyze the real estate development based on thereasons that led the Superior Court of Justice to edit Precedent nº 308, as well as thepossibility - or not - of the coexistence of the interests of financial institutions, developers andbuyers of autonomous real estate units. The paper analyzes the equity of affectation as anattempt to protect the purchasers of real estate, as well as to study the grounds used by thejurisprudence for the vulnerability of the mortgage guarantee, especially the social function ofthe contract and the objective good faith. With the scope of bringing theoretical contributionsfrom the academy to the practical application of the institutes, it is presented the cause of thecontract of real estate development and a certain discomfort with the content of Precedent nº308 of the Superior Court of Justice - which seems to break with the bases of the Brazilianlegal system -, in order to conclude that the study of fundamental rights and their horizontaleffectiveness can lead to the true legal basis to support and sustain eventual maintenance ofjurisprudential understanding, namely, the existence of the fundamental right to housing.Coupled with the traditional dogmatic / interpretive approach, the inductive method at workwill be privileged, based on the observation of economic reality and real estate relations.The structure of the text is based on the following main axes: the real estate incorporation andthe equity of affectation, the social function of the contract and the objective good faith asgrounds for the vulnerability of the mortgage guarantee in the jurisprudence of the SuperiorCourt of Justice and the effectiveness fundamental rights and the right to housing, as realreasons for maintaining the jurisprudential understanding. As a result, it is pointed out theneed to protect the purchasers of autonomous real estate units without thereby violating thelegitimate interests of the incorporators and financial institutions.