O DIREITO REAL DE HABITAÇÃO E A TUTELA DOS VULNERÁVEIS SOB A PERSPECTIVA CIVIL CONSTITUCIONAL

Abstract

This study aimed to analyze the discipline of the housing rights of the surviving spouse, according to the methodology of Constitutional-Civil Law, in order to investigate whether the rules related to it observe the values ​​emanated from the Constitution. The relevance of the investigation resides in the fact that, in certain cases, the literal application of the Law may imply the lack of protection of vulnerable people to whom the Constitution grants special protection. The specific objectives of the study were to analyze the need for law reform regarding the institute, as well as to examine what would be the best application of the norm to the particular cases, adopting two hypothetical “pathological” situations for its incidence. The adopted methodology consisted of a bibliographic review of specialized doctrine and the analysis of decisions of the State Courts and the Superior Court of Justice. It was possible to conclude, in this context, that law reform is recommended to give to the judge opportunity to analyze the needs of the right holder and possible vulnerabilities of the heirs. In addition, it was observed that, in certain cases, the literal interpretation of the law implies the violation of fundamental rights and constitutional principles, which is why, regardless of legislative reform, the judge should not apply the literality of the law, either through the “legal defeseability” of the rule or through teleological interpretation, in attention to the effective function of the housing rights of the surviving spouse.