8 min read

ITEM XXII-PROPERTY RIGHT

ITEM XXII-PROPERTY RIGHT

PROPERTY RIGHT: HOW DOES IT WORK IN BRAZIL?

The right to property is described in Item XXII of Article 5 of the Federal Constitution of 1988. It contains fundamental rights, with the aim of ensuring a dignified, free and equal life for all citizens of the country.

Briefly, the right to property can be thought of as a person's right, within the limits of the law, to dispose of and enjoy the property, and also to determine what is done with it. That is the right to property guarantees that any citizen has the right to own (that is, be the owner of) goods. But make no mistake, the right to property in Brazil is not unconditional! This means that there are limits imposed on it, the main one being the social function of property.

This content is part of a partnership between Instituto Mattos Filho,  Politize !, and Civicus,  which together explain the fundamental rights described in Article 5 of the Constitution.

To find out about other freedoms and rights guaranteed in the Constitution in a didactic and uncomplicated way, be sure to visit the Article 5 project page.

THE ITEM

Article 5 of the Federal Constitution of 1988 establishes that:

“All are equal before the law, without distinction of any kind, guaranteeing Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property , in the following terms:”

Within this Article, Item XXII determines:

“XXII – the right to property is guaranteed”

But, after all, what is the right of property? Several authors conceptualize this right in different ways, and it usually varies according to the religion or the political and economic system of each place.

According to the Brazilian jurist Maria Helena Diniz, the right to property can be understood as “ the right that an individual or legal entity has, within normative limits, to use, enjoy and dispose of property, tangible or intangible, as well as to claim it from whoever unjustly holds it ”. To better understand this definition, let's break this definition into three:

  • Right to use a good: it concerns the right to enjoy a good or make it available for use by another person, without that person being able to modify the substance of the good. For example, if you own a property, you can choose to use it, lend it or rent it.
  • Right of enjoyment over an asset: means having rights over the fruits or income that this asset provides. For example, having the right to the fruits of an orange tree that grows on your property, or being entitled to the income from renting a property that is yours.
  • Right to dispose of: this is the right that most expresses the domain/possession over the property. Meaning you can choose to sell it, donate it or trade it.

In other words, being the owner or having the right of ownership over an asset means having the right to use, enjoy and dispose of it.

Thus, Item XXII of Article 5 recognizes the right to property as a fundamental right to be protected by the Brazilian Constitution.

THE RELEVANCE OF THIS FUNDAMENTAL RIGHT

During a fair, the seller hands an apple to the customer |  Property right – Article Five

The way ownership is understood and the treatment given to property rights varies greatly between different cultures | Property right – Article Five

The right to property starts from the understanding that human beings naturally have the desire to own things. This desire to own could lead to a chaotic situation of permanent conflict over the possession of goods. Thus, it is understood that the State must guarantee the right to property as a fundamental right.

In addition to being present in Constitutions around the world, the right to property is also part of the Universal Declaration of Human Rights, in Article 17. Thus, it is observed that this right is practically a consensus throughout the world.

The importance of this right also lies in enabling the State to establish accountability mechanisms. After all, only by establishing the right to property is it possible to determine what theft is, for example. In this way, guaranteeing the right to property as a fundamental right is a way of regulating the natural desire for possession.

In addition, some International Organizations, such as the World Economic Forum, understand that the more secure property right is, the better the development of the economy and society will be. This would happen because the incentive to invest in a property is greater when the right to that property is guaranteed.

HISTORICAL PERSPECTIVE

Throughout Brazilian constitutional history, the way property is understood by the State has undergone several transformations, mainly due to the historical moment and the national and international political scenario.

The Liberal Constitutions

The Brazilian legal system starts to consider property as a citizen's right in the Constitutions of 1824 and 1891, influenced by the liberal constitutions of the United States and France. It is important to point out that at that moment Brazil had just gained its independence (1822), and this very process of independence and also of building a new country was strongly inspired by the independence of the United States and by the ideals of the French Revolution.

Due to this influence, these Constitutions established the right to property in its fullest form: as an absolute, exclusive, and unquestionable right. In other words, there was no limitation on the right of ownership.

Property in the Vargas Era

With the Revolution of 1930 and the rise of Getúlio Vargas to power, the new government sought to break with the domination of the traditional elite, which was closely linked to land ownership. In the 1934 Constitution, a new aspect came to govern the Constitution: a greater concern with social justice.

In this way, the right to property ceased to be an absolute right and became subject to the social or collective interest. This means that this right would no longer be unlimited, its limit would be that no property could harm the collective interest.

Still in the Vargas Era, the new Constitution of 1937 continued the understanding that property should be a limited right. Although it mentioned property as one of the rights guaranteed to the Brazilian population, it determined that specific laws would be implemented to limit property.

In addition, the 1937 Constitution also mentioned the mechanism of expropriation – that is, the State would have the power to withdraw the right to property from those who did not comply with the laws that regulated this right.

Post Vargas, dictatorship and re-democratization

In the 1946 Constitution, as well as in the constitutional reforms of 1967 and 1969, the understanding was maintained that the right to property would be limited by the fulfillment of certain duties and functions.

The 1988 Constitution, which marked the re-democratization of the country and is in force until the present day, maintains the understanding that the right to property is not absolute. Currently, the right to own land is conditioned to a social function, which all property must fulfill. This social function differs between urban and rural land holdings.

Therefore, it is observed that, with the exception of the period before the 1930 Revolution, the right to property in Brazil has always been constitutionally limited by the collective interest, based on the understanding that the law must serve the common good.

PROPERTY RIGHT IN PRACTICE: LIMITS AND MISAPPROPRIATION

Outstretched hand with a key to a property, plus a green key ring |  Property right – Article Five

The Brazilian Constitution subjects the right to property to certain conditions to guarantee the collective good.

As we have seen, the right to property in Brazil is guaranteed by the Constitution, but it is not unlimited. What limits this right is the fulfillment of the so-called social function. In order to understand how this all works in practice, it is necessary to understand what the social function is and what Brazilian law provides for to happen in case of non-fulfillment of this function.

The Brazilian Constitution only determines that the right to property is conditioned to the social function, but it is the Land and City Statutes that determine the social function to be fulfilled by rural and urban properties, respectively. Here, we will analyze in more detail the case of rural properties.

According to the Land Statute, the social function of rural property is determined by:

  • rational and adequate use;
  • proper use of available natural resources and preservation of the environment;
  • observance of the provisions that regulate labor relations;
  • exploitation that favors the well-being of owners and workers.

In the event of non-compliance with these conditions, the Constitution provides for a process of expropriation (through compensation) for the purposes of agrarian reform (Art. 184). That is, if a rural land property does not fulfill these functions, the government must withdraw the owner's right of possession (with the payment of compensation) and redistribute the land.

The case of the Landless Rural Workers Movement (MST)

It's very likely that you've already heard about the MST, right? Now that you understand how property rights work in Brazil, it's easy to understand what this movement is all about.

The MST is made up of rural workers who demand a piece of land to live and work. The well-known MST camps are occupations of land properties that are in an irregular situation, that is, that do not fulfill the social function. These camps are carried out as a way of putting pressure on the government to expropriate property that is irregular and redistribute it to these rural workers.

However, there are cases in which the public power considered that the lands occupied by the movement were regular, that is, they fulfilled a social function. In these cases, justice determines the reappropriation of the land, that is, it recognizes and defends the owner's right over that property, as guaranteed by item XXII of Article 5.

PROPERTY RIGHTS IN BRAZIL AND IN THE WORLD

As we mentioned at the beginning of this text, the way in which property is understood and the treatment given to the right to property varies greatly between different cultures, religions, and political systems.

The closer a country's culture is to the liberal values ​​inspired by philosophers such as John Locke, the more comprehensive the right to property in that place will be. On the other hand, in cultures where a more critical view of property prevails, inspired by thinkers like Rousseau, the right to property tends to be more limited.

But even in declared communist or socialist countries, such as Venezuela, China, and Cuba, the right to property is recognized. What usually varies between countries with a liberal tradition, social democracies and socialist countries are the limitations imposed on this right.

The Property Rights Alliance Project produces a report on property rights around the world from time to time. In this report, 131 countries were ranked according to the level of guarantee they offer property rights. The index takes into account three axes: the legal and political environment; physical property rights; intellectual property rights. In 2013, the United States was in position 17 in the ranking, Brazil appeared in position 56 and Venezuela was in position 127.

Thus, it is possible to observe that although the right to property is recognized all over the world, its limitations and guarantees vary a lot.

As you can see, Item XXII of Article 5 of the Federal Constitution is responsible for guaranteeing an almost universal right, recognized in most countries and also by the Universal Declaration of Human Rights. It is this item that guarantees your right to be the owner of something, that is, to enjoy, enjoy and dispose of a good.

However, as we mentioned, this right is not unlimited. Some countries understand the right to property as an absolute right, but the Brazilian Constitution subjects the right to property to certain conditions to guarantee the collective good.

See the summary of item XXII of article 5 in the video below:

If you prefer, you can download this content to read whenever you want!

Did you manage to understand Item XXII of Article 5 of the Constitution? To learn more about the Brazilian legal system, visit the Article 5 page organized in partnership with Instituto Mattos Filho and Politize!


About the authors:

Eduarda Victoria Motta - Litigation and Arbitration Lawyer

Isabela Moraes

Member of the Politize! Content team.


Sources:

https://jus.com.br/artigos/27032/direito-de-propriedade-funcao-social-e-limitacoes-constitucionais

https://oglobo.globo.com/economia/china-aprova-lei-historica-de-propriedade-privada-4209040

https://brasil.elpais.com/brasil/2018/07/17/internacional/1531858538_862054.html

http://www.emerj.tjrj.jus.br/serieaperfeicoamentodemagistrados/paginas/series/16/direitosreais_75.pdf

The evolution of property rights throughout the constitutional texts. 2008. DE ASSIS, Luiz Gustavo Bambini.