Acórdão nº 0410125 de Court of Appeal of Porto (Portugal), 04 de Junho de 1991
Magistrado Responsável | PEREIRA GUEDES |
Data da Resolução | 04 de Junho de 1991 |
Emissor | Court of Appeal of Porto (Portugal) |
N Privacidade: 1 Meio Processual: AGRAVO.
Decisão: ANULADA A DECISÃO.
Área Temática: DIR CIV - DIR REAIS. DIR PROC CIV.
Legislação Nacional: CCIV66 ART1568 N1. CPC67 ART494 N1 D ART753 N1.
Sumário: I - O direito do proprietário do prédio serviente a exigir a mudança da servidão para o prédio de terceiro depende, nos termos do artigo 1568, nº 1, do Código Civil, da verificação dos seguintes requisitos: a) ser a mudança conveniente para o autor; b) não prejudicar os interesses do proprietário do prédio dominante; c) ser feita à custa de quem a requere; d) ter o terceiro dado o seu consentimento para que a mudança se faça para o prédio deste. II - A falta do "consentimento de terceiro" a que alude o artigo 1568, nº 1 do Código Civil - porque respeita a um elemento integrante do respectivo direito - traduz-se na falta do próprio direito, não constituindo a excepção dilatória do artigo 494, nº 1, alínea d), do Código de Processo Civil ( "a falta de autorização ou de deliberação que o autor devesse obter", "scilicet", para intentar a própria acção ). III - Se os réus na...
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