A problemática fundiária urbana brasileira: perspectivas e desafios

Abstract

This paper aims to analyse the Brazilian urban land use issue, considering its historical evolution and the current institutional structure set by the Federal Constitution of 1988 and the laws that regulate it. The main objective is to identify the origin of the issue, considering its temporal extension until the current time, verifying the lapses that have arisen, the solutions offered by Public Authorities and their tendency to address the issue. The evolution of property and its legislation is demonstrated by analysing its historical roots from the Hereditary Captaincy system to the Land Law of 1850. Then, the urban legislation related to the matter is examined considering the evolution of the social function of property in the legal system, the right to housing and of habitation, from a constitutional and infra-constitutional perspective to support investigating the absence of public policies that would ensure effective implementation of these rights. This topic also addressed the constitutional policy of urban development, the social function of property and the social function of the city. In this context, the federal legislation related to land tenure regularization was studied considering the City Statute (Law No. 10.257 of 2001) as the first regulatory norm of articles 182 and 183 of the Constitution; then follows the analysis of the creation of institutes for urban land regularization provided by Law No. 11.977 of 2009; lastly are discussed Law No. 13.465 / 2017 and the Direct Actions of Unconstitutionality filed against it (ADIs No. 5.771, No. 5.787, and No. 5.883). At the end, this research exposes the solution offered by the current legal system to settle the problem of urban land irregularities. The implications and controversies of this solution is analysed to support answers to the research hypotheses herein presented.