SOCIAL AND ENVIRONMENTAL ROLE OF URBAN PROPERTY: RELEVANT ASPECTS AND EFFECTIVE INSTRUMENTS

Laura Santiago

Graduated in Law from Universidade Federal do Rio Grande – FURG. Specialist in Constitutional Law from Universidade Anhanguera-Uniderp. Master in Environment and Regional Development from Universidade Anhanguera-Uniderp. Lawyer at Ernesto Borges Advogados.

ABSTRACT

This work, prepared based on the hypothetical-deductive method, took as its initial reference the right of property and the appearance of its social function in the Brazilian legal system, passing through Environmental Law and the conceptualization of artificial environment, elements that are interconnected as legitimate means of socio-environmental role of property. Thus, we sought to define the principle of social and environmental function of urban property, protected by the Constitution of the Federative Republic of Brazil 1988 and by ordinary legislations. In this sense, as a result, an analysis was made of the effectiveness and applicability of socio-environmental role in urban properties in favor of the sustainable development of cities, the preservation of environment and, consequently, social well-being. 

SUMMARY

1. Introduction – 2. Chapter I – Appearance of social function of property and environment as an object of Law – 3. Chapter II – Socio-environmental role of urban property in the Constitution of the Federative Republic of Brazil 1988 and its infra-constitutional guidelines – 4. Item 3.1 – Master Plan and its environmental guidelines in accordance with the national urban development policy – 5. Item 3.2 – Environmental awareness according to the City’s Statute – 6. Chapter III – Implementation of socio-environmental role of urban property and coercive instruments – 7. Item 6.1 – Compulsory subdivision, building, or use – 8. Item 6.2 – Tax on Urban Property and Territorial Progressive in Time – 9. Item 6.3 – Expropriation-sanction – 10. Conclusion – 11. Bibliographic References

1. INTRODUCTION

In addition to the social function of property, the Brazilian constitutional and infra-constitutional legislation also protects its environmental function, which is added to that, forming what is called the socio-environmental role. It was in the Constitution of the Federative Republic of Brazil 1988 that property and its functions gained greater relevance, and in its art. 5th, caput, and items XXII and XXIII, such right is assured, reaffirmed in art. 170, III, for the social function of property as a principle of economic order. It should be noted that the 1988 Constitution was the first to deliberately address the environmental issue. Therefore, the legal system started to expressly contemplate the environment conservation as the basis for sustainable social and economic development.

Thus, divided into three chapters, this scientific article aims first, through hypothetical-deductive method, to analyze the appearance and importance of social and environmental functions of urban property for environmental balance combined with economic growth, as well as social and sustainable development of cities. All of this whereas, currently, the environment, as a condition of good for the people’s common use, is in a position of political and legal autonomy when compared to other categories of goods, which are more vulnerable to the rules of private appropriation.

In a second moment, this theme is involved in the problem that exists in making economic growth, the social function of property and environmental conservation compatible for present and future generations, in such a way that substantial elements of nature will not continue to be destroyed. Thus, in an attempt to refine and broaden the understanding of some presented questions, it is intended to elucidate the ways of implementing urban, economic, social, and environmental issues related to urban properties, their functionalization, and the sustainability of cities, through urban public policies ensured by the Constitution of the Federative Republic of Brazil 1988, as well as by infra-constitutional legislation.

Above all, lastly, it seeks to elucidate the effectiveness of the socio-environmental role in urban properties and their coercive instruments (as concrete means) provided for in the Brazilian legal system. This aims to guarantee not only the individual rights of owners, but, above all, those of the entire community for the sake of a common well-being and a healthy and harmonious environment within developed and sustainable cities.

2. APPEARANCE OF SOCIAL FUNCTION OF PROPERTY AND ENVIRONMENT AS THE OBJECT OF LAW

In Brazil, property had its social function – albeit implicitly – ensured from the Constitution of the Republic 1934, with this guarantee being included in subsequent constitutional texts. However, it was only in the 1967 Constitution (with Constitutional Amendment no. 1/69), that there was explicitly a significant advance in relation to private property, with the consequent consecration of its social function as a socioeconomic principle, in order to promote development and social justice, restricting, at that moment, its application to expropriation for agrarian reform.

However, it was in the Constitution of the Federative Republic of Brazil 1988 that the principle of social function of property was referenced in a much more efficient way, through exclusive and applicable rules, with the insertion of sanctions for its non-compliance. It should be noted that the 1988 constituent raised the role of social function to the seat of a stone clause, since in art. 5th, caput, items XXII and XXIII (inserted in Title II – Fundamental Rights and Guarantees / Chapter I – Individual and Collective Rights and Duties)[1], guarantees the right to property, determining that it will only be recognized when its social function is fulfilled (for both rural and urban property). In addition, art. 170, III, of the 1988 Constitution, also deals with the right to property and its social function, embodied, in the same way, in a general principle, remaining clear that it represents both a relevant economic and a social interest.

In this pitch, the social function of property tries to reconcile the individual interests of the owner (which are, in addition to providing opportunities for the private exploitation of economic attributes arising from appropriable resources) with the needs of society (in the sense that the right of property right of the private cannot negatively affect the whole common good). As Eros Roberto Grau teaches, the ownership of production goods constitutes a form of social function-property and that imposes on its holder – or whoever has a certain power of control – the duty to exercise it for the benefit of community and not just the duty not to exercise to the detriment of others, recognizing that subject an imposition of positive behaviors defined by the legal standard[2]. In other words, the social function of the property would act as a basis for imposing positive actions on its holder, aiming to ensure the right inherent to it in harmony with collective aspirations.

In view of this, the principle of social function goes beyond private autonomy, in order to protect the common legal assets of society, among them, the right to a balanced nature. Therefore, Paulo de Bessa Antunes teaches that the maturation of understanding constitutional property passed through several phases and, certainly, was inaugurated by the so-called social function of property, which had as its origin a strong conflict between collective needs, or so interpreted, and the particular regime of individual property. Given that the right to property was endowed with contours that did not contemplate meeting the needs of the community, the legal solution found was expropriation. Not that expropriation and other “limitations” were possible even in so-called “liberal” regimes. Modernly, and especially in the light of the 1988 Federal Constitution, it is no longer necessary to speak of antagonism between different configurations of property rights, given that the Constitution contemplates numerous configurations that are endowed with equal dignity. However, it must be recognized that the change in legal status to property rights is not immediately transmitted to the ways of understanding and interpreting that same right. [3]

Furthermore, the infra-constitutional legislation also surrendered to the theory of social function of property, especially the current Civil Code, which – explicitly – not only determines its implementation, but also links property to environmental protection, according to art. 1228, § 1º.[4] Consequently, this “new property right” is only admitted to the extent that it fulfills its social function, in which standards for protection, conservation, and environmental preservation are absorbed.

It means to say that, based on social function, it was agreed that the right of property must coexist with environmental protection. This is because the relationship between man and the environment – long since surpassed anthropocentrism – must be modeled reciprocally between the Law of Things and the Environmental Law, due to the fact that the environment and things are elements of human relations and their interests rooted in the objectives of society in general. It should be noted that, in the Brazilian legal system, the environment has a legal definition given by the National Environmental Policy Law, no. 6,938 of 1981, enshrined in its art. 3rd, I, being “the set of conditions, laws, influences, and interactions of a physical, chemical, and biological order, which allows, shelters, and governs life in all its forms.”.

According to Carlos de Almeida Washington, the environmental good is protected by itself and its standardization has – solely and exclusively – the purpose of protecting man from man himself, because the subject of Environmental Law is nature itself, leaving the human being the protection indirectly.[5] In addition, the Constitution of the Republic 1988 recognizes innumerable rights to nature – be it original or artificial – and should be a constant concern of the Public Power and of the whole community its preservation, as interpreted in art. 225, caput[6], since the balanced environment became part of the range of unavailable guarantees, acquiring the quality of a fundamental right, this being the limitation of performance of private individuals and of the State itself.

3. THE SOCIO-ENVIRONMENTAL ROLE OF URBAN PROPERTY IN THE CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL 1988 AND ITS INFRA-CONSTITUTIONAL GUIDELINES

Within the perspective of artificial environment – which is the built urban space – the social function of property is also defined, since the urban soil is intended for the exercise of elementary functions of the city and, consequently, one function is interconnected to another. Consequently, Rogério Gesta Leal points out that private property, including and especially urban property, is guaranteed as long as it meets its social function, as one of the general principles of economic order; it must be linked to its purposes, which means that it must ensure a dignified existence for all, according to the prescriptions of an effectively isonomic social justice. [7]

Above all, the social function of urban property is constitutionally provided for by art. 182, § 2 (inserted in the Urban Policy Chapter), which provides that “urban property fulfills its social function when it meets the fundamental requirements of city ordering expressed in the Master Plan”. In addition, the importance of planning and spatial ordering, appreciation of urbanization methods, and reduction of impacts derives from this urban aspect, in order to achieve socio-environmental harmony in cities.

Generally speaking, the constitutional provisions operate in order to adapt the exercise of ownership in exchange for environmental and social standards, establishing, albeit implicitly, the duties of protection, preservation, and restoration that the individual must have towards the property, which is incumbent upon fulfilling its essential functions, always based on a greater good: the environment (suitable for the well-being of society in general). Thus, in order to carry out such duties inherent to the aforementioned concept of function, mandatory conduct will be imposed, both positive and negative, that go beyond the mere “do not pollute”, but encompass ideas of conserving and preventing environmental degradation by third parties.

Corroborating the definition of social and environmental function of property, Eros Roberto Grau teaches that the principle admission of social (and environmental) function of the property has as its basic consequence that the property is effectively exercised to benefit the community and the environment (positive aspect), it is not enough that it is not exercised to the detriment of third parties or environmental quality (negative aspect). In other words, the social and environmental function does not constitute a simple limit to the exercise of the right to property, such as that traditional restriction, through which the owner, in the exercise of his right, is able to do everything that does not harm the community and the environment. In contrast, the social and environmental function goes further and authorizes until positive behaviors are imposed on the owner, in the exercise of his right so that his property is concretely suited to the preservation of the environment. [8]

Through the constitutional normative command, it can be said that the environmental function is added to the social function in order to produce the essence of which the property subsists; it is worth mentioning that the property’s legitimacy and ownership are conditioned to the strict fulfillment of its socio-environmental role. So, the non-fulfillment by the owner of socio-environmental role of property is an extinguishing form of ownership, insofar as, in the light of a “de-patrimonialized” and “humanized” civil-constitutional right, the functionalization of property takes the form of a core element that constitutes the property right itself.[9]

From all this, it can be inferred that the social function of urban property is nothing more than the grouping of activities aimed at the growth of cities based on public and private interests, completed by sustainability, and which is linked to an environmental function, which it does not separate, but is complete. Thus, the Constitution established a parameter for the fulfillment of socio-environmental role of urban property, which reflects exactly the set of measures to be adopted by the Public Power in conjunction with society, according to the Master Plan, whose guidelines are contained in Law no. 10,257/2001 (City’s Statute), in its art. 2, supported by environmental planning. In this sense, Marcelo Buzaglo Dantas and Luciana Cardoso Pilati assert that the duties of the collectivity arising from shared and solidary responsibility are also related to the limitation of subjective rights of the subjects of collectivity, as they tend to affect, reducing the manifestation of certain freedoms, such as, for example, the right to property. It is noteworthy that not only individuals are obliged to protect the environmental good, but mainly the productive sector, through social responsibility, and the Public Power itself, as a tutor for the common good of people. [10]

 In addition to that, the city, defined as an artificial environment and habitat of the human being, performs numerous urbanistic functions, so that its correct ordering should aim at the stability of nature in which it is immersed, constituting a way to offer environmental aptitude adequate to the population’s quality of life aspirations. In addition, the social function of urban property arises from the harmony between public and private interests, which are subject to that, since the use made of each property must enable the full realization of urbanism and the balance of city’s relations. [11]

4. – 3.1 MASTER PLAN AND ITS ENVIRONMENTAL GUIDELINES ACCORDING TO THE NATIONAL URBAN DEVELOPMENT POLICY

The current Brazilian Constitution, in its art. 182, caput, inserted in Title VII – Economic and Financial Order – Chapter II – Urban Policy, set forth that “the urban development policy, carried out by the municipal Public Power, according to general guidelines established by law, aims to order the full development of city’s social functions and guarantee the well-being of its inhabitants”, granting the Master Plan important prerogatives, since it “is the basic instrument of development and urban expansion policy” (art. 182, § 1), whose purpose should express the “basic ordering requirements of the city”, which will serve to assess the fulfillment of “social function of urban property” (art. 182, §2). In the same sense, Law 10,257/01 provided in its art. 39: “urban property fulfills its social function when it meets the fundamental requirements of ordering the city expressed in the Master Plan, ensuring that citizens’ needs are met in terms of quality of life, social justice, and development of economic activities, respecting the guidelines provided for in art. 2 of this Law”.

Necessary to clarify that the social function of the city differs from the socio-environmental role of each urban property individually, since, when the property fulfills its social and environmental function, it meets the conditions of ordering the city, imposed by the Master Plan, and which together seek a sustainable, balanced, supportive, and fair urban development. Therefore, urban policy converges with environmental policy. Still, by “full development of social functions of the city” it is understood that the city, according to its planning, must grant its citizens the individual rights and guarantees provided for in art. 5 (right to life, security, equality, property, and freedom) and in art. 6 (social rights to education, health, leisure, work, social security, childhood, assistance to the helpless, among others) from the current Constitution, in order to provide general well-being.

Undeniably, the imposition made by the Constitution of the Federative Republic of Brazil for the preparation of a Master Plan requires, in parallel, planning, since that is only the instrumentalization thereof, which is the externalization of guidelines and goals, the feasibility of possible problems and consequent coordination of results of works and services and everything that can lead to the solution of objectives set for urban growth, always guided by the balance of the environment. In this respect, urban planning is not a single and concentrated act, but a continuous and appropriate exercise in accordance with socio-environmental prescriptions.

In addition, it is the guidelines of the Master Plan that will delimit the attitudes, duties, and obligations to be carried out by property owners, or even by those who own these urban properties, in order for them to achieve their socio-environmental role. In the meantime, the Master Plan is not only a technical instrument, concretizing urban planning, but also has a legal character, since, in order to be valid, it must be approved by municipal law, also passing through popular approval. As José Afonso da Silva teaches, It is plan, because it establishes the objectives to be achieved, the deadline by which they must be achieved (although, being a general plan, there is no need to set a deadline, with respect to the basic guidelines), the activities to be carried out and who should carry them out. It is master, because it sets the urban development guidelines in the Municipality .[12] (emphasis in the original).

In addition to the provision included in the Constitution, the Master Plan is also mentioned in infra-constitutional legislation as in Law 10,257/01 (City’s Statute), in its art. 40, § 1, where it stands out as an integral part of the municipal project, with the multiannual plan, budgetary guidelines, and annual listing absorbing the purposes and priorities contained therein. In this context, the Master Plan must encompass the territory of the Municipality as a whole (art. 40, § 2), being implemented through a process of preparation and inspection by Legislative and Executive Powers (art. 40, § 4). It is also worth whereas the City’s Statute expanded the list of cities in which the Master Plan is mandatory (art. 41), covering not only municipalities with more than twenty thousand inhabitants, but also: a) members of metropolitan regions and urban agglomerations; b) where the Public Power intends to use the instruments provided for in § 4 of art. 182 of the Constitution of Republic; c) members of areas of special tourist interest; d) inserted in the area of influence for undertakings or activities with significant environmental impact at the regional or national level; and, e) included in the national register of Municipalities with areas susceptible to the occurrence of high impact landslides, sudden floods, or related geological or hydrological processes.

As for its content, according to art. 42, of Law 10,257/01, the Master Plan must contain, at least: a) the delimitation of urban areas where compulsory subdivision, edification, or use may be applied, considering the existence of infrastructure and demand and use, in the form of art. 5 of the same law; b) the provisions required by arts. 25 (right of preemption), 28 (onerous grant), 29 (soil alteration), 32 (urban consortium operations) and 35 (transfer of the right to build); and, c) monitoring and control system. Finally, it is worth highlighting item V, of art. 42-A (included by Law 12,608/12) as an important corroborator of the Master Plan as an effective instrument for the socio-environmental role of property, since it provides for absorbed cities in the national register of Municipalities with areas susceptible to the occurrence of high impact landslides, sudden floods, or related geological or hydrological processes, which should contain, among others, “guidelines for the land regularization of irregular urban settlements, if any, in compliance with Law 11,977, 2009, and other relevant federal and state rules, and forecast of areas for housing of social interest through demarcation of special areas of social interest and other instruments of urban policy, where housing use is permitted”.

It can also be verified that, in comparison with the social function of rural property, the substantial ordering requirements of cities, which fall on the social (and environmental) function of urban property, are the coherent and adequate management of property and its natural resources, as well as environment conservation, with observance of labor relations and use that favors the well-being of owners and workers. Furthermore, the work of Hely Lopes Meirelles highlights that the Master Plan it is one, although successively adapted to the new demands of the community and local progress, in a perennial planning process that adapts to the population’s needs, within the modern management techniques and resources of each City Hall. The Master Plan is not static; it is dynamic and evolutionary. In setting objectives and guiding the development of the Municipality, it is the supreme and general law which establishes priorities in the achievements of local government, conducts and orders the growth of the city, disciplines and controls urban activities for the benefit of social well-being. [13]

Therefore, all matters relating to urban development policy on national soil must be added to the considerations of socio-environmental role, since this is shown as the guiding principle of the Master Plan, as well as the City’s Statute. In fact, through the urban growth systems and the Master Plan, the Constituent of 1988 sought to protect and, in a certain way, realize the social and environmental function of property, making the sustainable use of urban areas occupied by man and which, added up in their individualities, originate and structure cities.

5. – 3.2 ENVIRONMENTAL AWARENESS ACCORDING TO CITY’S STATUS

As of Law 10,257/01, called the City’s Statute (art. 1, sole paragraph) – whose objective was to regulate the chapter of the Republic’s Constitution that deals with Urban Policy (arts. 182 and 183) – there was the institutionalization, as general rules of Urban Law, of a range of means and resources predisposed to urban intervention, enabling Public Administration to act effectively in this area and enabling the implementation of principle for socio-environmental role of property. It is worth mentioning that all sectors of the Public Power can and should intercede in this branch, however, the performance of Municipalities is more forceful, as required by law. [14]

Given this context, one of the most important characteristics of the City’s Statute is the consolidation of a new conceptual standard, added to the paradigm shift regarding the right to property and its destination, since the use of urban property must be in line with the standards imposed by Public Administration, in order to guarantee that the use by the private person will not jeopardize values and rights guaranteed to all citizens, as an ecologically balanced environment. Thus, Law 10,257/01 regulates, in addition to pure and simple use of urban property, the main guidelines of artificial environment, based on environmental balance (art. 1, sole paragraph) and as a result of the legal treatment listed in arts. 182 and 183 from the Constitution; and the management of urban property is not only conditioned to cities, but also to the natural, cultural, and work environment.

In this sense, it is Chapter I (General Guidelines) of the City’s Statute that provides for viable procedures in favor of sustainable urban growth, and at first the concern with maintaining the environmental balance is noticeable, understood in the socio-environmental role of property, because in its art. 2, it presents comprehensive goals that should guide the urban development policy, highlighting item I, by stating on “the guarantee of right to sustainable cities, understood as the right to urban land, housing, environmental sanitation, urban infrastructure, transportation, and public services, work and leisure, for present and future generations”; to be carried out by the Municipal Public Power, in the perspective of the so-called protection of meta-individual material rights, that is, for the benefit of the entire community. Consequently, the reference to the right to sustainable cities means that the ordering of urban development (objective of urban policy), must occur in a way that does not generate any type of degradation to the environment, thus ensuring the social values of preservation and housing for the benefit of current and future population.

Addressing this thought, Liana Portilho Mattos states that they are instruments that can and should be used by the Municipalities in a combined way, in order to promote not only the normative regulation of processes of use, development, and occupation of urban land, but especially to actively induce the direction of such processes, and can thus interfere directly with, and to reverse, to some extent, the pattern and dynamics of productive, formal, informal and, above all, speculative real estate markets that, as they operate today, have determined the growing process of social exclusion and spatial segregation in Brazilian cities. [15]

In this regard, the instruments brought by the City’s Statute are of paramount importance, in order to assist not only the enforcer of law, but also public managers and society to realize the socio-environmental role of property, even though such law has repeated the constitutional issue of referring to the Master Plan. However, with the joint application of the urban policy tools contained in the City’s Statute with the traditional mechanisms of urban planning, the Municipalities now have a greater variety of possibilities to act in the realization of a new urban order, more fair and more cohesive with the socio-environmental issues in the city.

6. EFFECTIVENESS OF SOCIO-ENVIRONMENTAL ROLE OF URBAN PROPERTY AND COERCIVE INSTRUMENTS

As seen, property has interference with environmental legislation in the pursuit of its social purpose, whereas, currently, the exercise of right to real estate property cannot be dissociated from the rules of Environmental Law. Thus, if, on one hand, it is certain that even private appropriation (property) cannot take place in the exclusive interest of the owner, and that there is an obligation that all relations of private appropriation fulfill, in addition to an economic function, an environmental function, of maintaining fundamental ecological balances; on the other hand, certain species of elements that integrate biodiversity and even some natural spaces are not subject to this regime. Such assets are excluded from the power of private detention, being permanently and intergenerationally reserved by the community, approaching the condition of heritage. This approach favors the assignment of constitutional, solidarity, and community obligations, of different orders and species, related to the protection of environmental good and realization of a fundamental right to the environment. [16]

Furthermore, as to the real realization of social (and environmental) function of property, this must also be analyzed from a legal point of view, whereas it is a principle that is not only constitutional, but also ordinary, because it is included in the City’s Statute, having, for such reason, contours of legal standard. Thus, effectiveness translates into the capacity of the legal standard to produce effects pursued by its commandments, regulating the situations provided for in its content.

Furthermore, it is the Public Administration that must verify, through its law enforcement power, the effectiveness of the fulfillment for socio-environmental role of a given urban property and implement measures to do so, redefining such properties in accordance with the Master Plan, after enactment of a specific municipal law. However, the Judiciary can and should assess, when requested to do so, whether property exercises its inherent functions for social well-being, using constitutional parameters, regardless of any inferior rule. Thus, the infra-constitutional legislation can even be handled in the legal world, but as a complement to the constitutional rule, which has full application as to the functions of urban property.

It is also necessary to emphasize the fact that the principle of social function of property and the right to property are included in the list of fundamental rights and guarantees, according to art. 5 from the Constitution, and, for such reason, constitute standards of application and immediate effectiveness (§1). Thus, once these constitutional provisions have been analyzed, it is concluded (albeit by analogy) that the rules which stipulate the social (and environmental) function of urban property must be immediately followed, not only by private individuals but also by the Public Power.

It can also be emphasized the fact that the City’s Statute is a regulatory instrument for urban policy, with such a rule having full (as well as immediate) effectiveness. This is because, with the advent of Law 10,257/01, any doubts still remain as to the effectiveness for the principle of socio-environmental role of property, as this law reaffirms arts. 182 and 183 of the Republic’s Constitution, establishing general guidelines and other measures in relation to the sustainable urban development policy. At the same time, it is important that Public Power and society (as the main interested party) inspect the real fulfillment of socio-environmental roles of properties, and, if applicable, the owner must be compelled to such obligation, under penalty of losing its legitimacy through application of coercive instruments provided for in the constitution (art. 182, §4, I to III) and Law 10,257/01 (arts. 5, 7 and 8), which seek to achieve urban-environmental sustainability.

7. – 6.1. COMPULSORY SUBDIVISION, BUILDING, OR USE

Aiming to instrumentalize the applicability of social and environmental function of urban property, supported by art. 182, §4, I, from the Constitution of the Federative Republic of Brazil, art. 5 of the City’s Statute provides that the “specific municipal law for the area included in the Master Plan may determine the compulsory subdivision, edification, or use of unbuild, underutilized, or unused urban land, establishing the conditions and deadlines for implementing said obligation”.

Indeed, it is understood that for the real effectiveness of socio-environmental role of properties, the sanctions provided for are: for non-built urban properties – the determination of compulsory building; for underutilized – compulsory use; and, for those not used – the compulsory subdivision plan. It is worth mentioning that undeveloped areas are those without any construction (which may or may not have been used/subdivided), such as, for example, a bare land; unused areas, on the other hand, would be those that have no use/destination, neither buildings or subdivisions, which is why their social function would be to build them (when they would be classified), or to divide them; and, finally, an underutilized property is one in which there is a utilization below the legal index allowed and defined by the Master Plan or by legislation resulting thereof (art. 5, §1, I, of Law 10,257/01), that is, even if the property fulfills a certain function, if it proves to be less than the minimum required, the Public Administration may determine its adequacy, under penalty of applying the sanctions provided for.

Therefore, compulsory subdivision, building, and use determine to holder an obligation to do so, with the purpose of providing the property with a better use in line with the duty to preserve the artificial environment, thus combating the urban voids that just waste the installed structure. Thus, with the realization of these instruments, “perpetuity, a quality inherent to real rights, ceases to exist in urban property. The Constitution no longer tolerates non-use, starting to demand a positive, productive property, which will bring benefits to the holder and to the city” [17]

Finally, the Public Power noting that a given urban property does not apply the social and environmental function “the owner will be notified by the municipal Executive Branch for the fulfillment of obligation, and the notification must be registered with the real estate registry office”, as provided in §2, art. 5, of the City’s Statute. The reason for this notification is to enable the owner to spontaneously comply with the obligation, which consists of building, subdividing, or using the property, aiming at the realization of socio-environmental role, in accordance with the provisions of the Master Plan. In addition, the notary’s registration of the notification is a way of enforcing lift omnes to such a mechanism, making possible future owners aware of the municipal activities and aware that the requirement to use the property well will fall against him. As can be seen from art. 6, it is an administrative process, making it possible for the private individual to contradict himself, which carries with it an obligation propter rem, falling on the person who holds the domain of the good, because when it is transferred, it passes the responsibility to acquirer, exempting the transferor.

As for the deadlines, §4, of art. 6, regulates that the initial term for the protocol (with the municipal agency) of the project for the use of property is one year, from the notification; after the approval of project, the deadline is two years for the start of enterprise works. Finally, highlight §5, art. 6, which deals with the so-called large enterprises, of which the specific municipal law, in exceptional circumstances, may provide for the completion in stages, ensuring that the approved project encompasses the enterprise as a whole.

That said, it appears that the compulsory subdivision, building, or use (however much they may perish in the face of bureaucracy and the lack of initiative on the part of municipal Public Power – which often resists its application), represents a great coercive instrument combined with the implementation and application of socio-environmental role of urban property and, consequently, the sustainable development of cities. In any case, both the Republic’s Constitution and the ordinary legislation provide for such a sanctioning mechanism, stipulating that upon non-compliance, other sanctions are implemented, such as the Tax on Urban Property and Territorial Property (IPTU) progressive over time.

8. – 6.2 TAX ON URBAN PROPERTY AND TERRITORIAL URBAN PROGRESSIVE IN TIME

Another coercive instrument – in order to implement the socio-environmental role of urban property – the Tax on Urban Property and Territorial Urban (IPTU) is progressive in time and successive, because it will only be possible when the owner fails to comply with the stipulated conditions and deadlines. Thus, if the obligation to subdivide, build, or compulsorily use urban property has not been carried out, the Municipality may apply the IPTU as a sanction with progressive rates for a maximum period of five years.

In addition, the succession between these mechanisms is constitutionally embodied, in the form of art. 182, §4, having the IPTU progressive over time as a subsidiary character as an instrument of urban policy, since it will only be applied in the case of non-compliance with impositions given in order to carry out compulsory subdivision, building, or use in non-functionalized urban property. Above all, because it is a tax, the determination of progressive IPTU is also based on the principle of anteriority, according to art. 150, III, item b, of the Constitution, from which the same specific law that provides for the fulfillment of mandatory subdivision, building, or use will institute the progression of rates after the legal term has passed without the fulfillment of such obligation.

It is important to point out that the IPTU that is progressive over time is a non-economic collection tax and, for this reason, is called extra-fiscal, as it uses tax means as a form of incentive or even inhibiting certain behaviors of the urban property’s owner, aiming at functionalization in the sense of adapting it to the preservation of artificial environment, in which it is inserted, as well as stipulating a social purpose. Therefore, it differs from the IPTU provided for in art. 156 of the Republic’s Constitution, a tax that has the property or possession as a taxable event, paid by all owners or holders, aiming at the collection for public coffers, both of which may be levied on the same property, as they do not have the same legal nature.

Thus, the imposition of progressive taxation is a linked decision of the municipal Public Administration, since the discretionary action took place at the time of assessment of the need and convenience of applying or not the compulsory subdivision, building, or use to a certain property that does not fulfilled its socio-environmental role. It should be noted that, if the owner grants the project for the use of his property (fulfilling the urban obligation), the collection of the following exercise for the progressive IPTU over time is suspended. However, in the event of further non-compliance by the holder, failing to carry out the works and disregarding the rules for the environment preservation, the extra-fiscal increase will be resumed from the point at which it ceased.

As can be seen from art. 7th, caput, of the City’s Statute, the Municipality will only be able to fix the rate increase, since the calculation base of the progressive IPTU over time on non-functionalized property will always be the same. This time, through this device, the discretionary freedom of the Municipal Entity is limited, stipulating the maximum value of the progressive tax rate, levied on urban property, at fifteen percent, in the same way that it establishes the maximum value in which such rate may be increased year after year, over five consecutive years.

Furthermore, by the provision of § 2, art. 7, of the Statute, if the obligation to subdivide, build, or use the property is not promoted by the property’s owner after five years of application for the progressive IPTU rate (coercive), the municipal Public Power will maintain the collection until said duty is completed or until the expropriation-sanction of the property is proceeded, as provided for in art. 8 of the same law. Consequently, there is no confiscatory characteristic on the part of such progressive taxation at its maximum rate, even for an indefinite period, as the property’s owner obtained numerous opportunities that could prevent the application of such a sanctioning instrument. Furthermore, §3, of said art. 7, explicitly forbids the granting of exemptions or amnesty related to the progressive taxation of IPTU, since, considering it is a sanction, such institutes are not applicable, which benefit taxpayers in the payment of taxes or fiscal penalties.

In short, the concept that the owner will only be held responsible with the progressive rate of IPTU (with a gradual annual increase limited to fifteen percent) is extracted from such a coercive instrument, if it clearly causes it, from the moment that does not comply with socio-environmental impositions made by the Municipality, by means of a specific law.

9. – 6.3 EXPROPRIATION-SANCTION

As can be seen from art. 182, §4, III, of the Federal Constitution and art. 8 of the City’s Statute, if five years have passed since the collection of progressive taxation and the owner of the area, object of notification, remains inert, without the presentation of an urban project that gives the property adequate use (building, subdivision, or use), expropriation as a sanction will be allowed to the Public Power – subject to its discretionary power – through payment in public debt securities.

Firstly, it is emphasized that such an instrument is called expropriation-sanction because the loss of property occurs due to non-compliance with the urbanistic obligation (socio-environmental role), which the holder falls to carry out, and not because of social interest or public utility by the Public Power. In addition, publicity in this type of expropriation is not necessary, since it is the third mechanism imposed on the owner in a successive way in order to compel him to functionalize his property socially and environmentally, also waiving, for the same reason, the issuance of expropriation decree.

Therefore, this sanctioning urban expropriation differs from the traditional expropriation provided for in arts. 5, XXIV and 182, § 3, of the Constitution (for necessity and public utility), in view of its character of penalty, in the scope of applying to the urban property an effectively concrete socio-environmental role, and should be promoted by the Municipal Entity as long as provided for in the Master Plan that coverage areas, being, in this sense, contrary to the promotion of ordinary expropriation, which is carried out by the federal levels  (Union, State, or Municipality) duly authorized to do so.

It is also determined in art. 8, caput, of Law 10,257/01, that the payment corresponding to the expropriation-sanction will be made through public debt securities, establishing in its §1 that such bonds “will have prior approval by the Federal Senate and will be redeemed within ten years, in annual, equal and successive installments”. That said, it appears that this expropriation is not compulsory (like ordinary expropriation), since it will depend, for its application, on the approval of the Federal Senate, which will confirm or not the issuance of bonds used for payment of expropriated owner, who will receive at least equal to ten percent, per year and successively, of the amount due.

By the way, §2 of said art. 8, establishes that the actual value of the indemnity: “I – it will reflect the value of the IPTU calculation base, less the amount incorporated due to works carried out by the Public Power in the area where it is located after the notification referred to in § 2 of art. 5 of this Law”; and “II – it will not compute expectations of gains, loss of profits, and compensatory interest”. Therefore, the actual value is understood as the result of property loss by the owner, that is, the property value, which will be fixed based on a fair indemnity and guaranteed until the end of the receipt (after ten years), through redemption of public debt bonds. Thus, it translates into the full amount of the damage suffered, from the property loss, monetarily restated up to the date of the effective redemption/payment.

According to the teaching of Fernanda Lousada Cardoso, what will be indemnified in this case is the actual value of the property and not its fair value. The law itself excludes loss of profits, compensatory interest, and urban surplus generated by public funds from the actual value, referring it to the venal value considered for the purposes of IPTU taxation. Public works, to be disregarded, must have been carried out after notification of the owner provided for in art. 5, §2. [18]

In fact, said deeds will not have the releasing power to pay taxes (art. 8, § 3), and it is of utmost importance to highlight that the procedural rite used in this type of expropriation, said as a sanction, is the provision in Decree-Law 3,365/41, more precisely of its arts. 11 to 30, since it is a general rule for all types of expropriation, neither suspending nor interrupting the deadlines in any event. Above all, after the expropriation-sanction process is over and the property is incorporated into the Public Power, the municipality must, within a maximum period of five years, proceed with the appropriate use thereof (art. 8, §4), directly or by means of disposal or concession (the proper bidding procedures are ensured, according to §5 of art. 8) to third parties, who will have the same subdivision, building, or use obligations imposed on the expropriated former owner (art. 8, §6), and the time must be stipulated in the notice for the new acquirer to functionalize the property, following the socio-environmental parameters, and the participation of the former holder in the bidding is prohibited. [19]

10. CONCLUSION

It remains crystal clear that in the Brazilian legal system, self-applicability and the effectiveness of socio-environmental role are inherent to property rights. More than ever, there is a need for political and legal bodies to be concerned not only with the interpretation of laws, but also with the actual possibilities of realization when it comes to the principle of socio-environmental role of urban property, whereas it is a constitutional and also ordinary standard as confirmed by the City’s Statute.

However, in spite of the self-applicable standard, which is fully effective, the socio-environmental role is not always realized in urban properties, with the existence of essential sanctioning instruments for the management of cities, which can and must be articulated with existing ones. In this context, the coercive means for the functionalization of urban property (provided for in the current Constitution of the Federative Republic of Brazil and in the City’s Statute), allow the incorporation of more effective public urban planning policies, based on the preparation of specific municipal laws and the Master Plan.

Furthermore, it is necessary to clarify that not only the Public Power is a legitimate agent of socio-environmental role of urban properties, since society in general, which is more interested, must not only comply, but to inspect in the same direction, aiming at a balanced environment. This is because, if, by adopting an unprecedented standard, the current Constitution proposes new legal models of environmental reference, including political, economic, and social reflexes in this area, its implementation depends on a new attitude of society and the State itself.

The normative strengthening of the environment – in the Brazilian legal system – stimulates the creation of sustainable environmental management, which requires concrete implementation and effective compliance through the application of public policies, in an integrated and articulated manner with the community, as the legal construction it is the result of a paradigmatic change not only of the legislator, but – fundamentally – of the ideas of a given population. That is why the private sector needs to be supported so that it collaborates with the Public Power in the execution of its environmental and sustainable development policy, thus bringing about the confluence of everyone’s interest in the nature’s preservation.

Above all, society must pay attention to economic and social development coupled with an ecological awareness, especially in urban areas, and this concern cannot be only in relation to the quality of natural environment in an abstract way. In summary, the preservation of global heritage, that is, the environment, must be taken into account considering all manifestations in the face of a joint performance of factors, starting with the socio-environmental sustainability of the space in which each individual lives.

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[1] FEDERAL CONSTITUTION/88, art. 5 – “Everyone is equal before the law, without distinction of any kind, ensuring to Brazilians and foreigners residing in the country the inviolability of the right to life, freedom, equality, security, and property, in the following terms: […] XXII – the right to property is guaranteed; XXIII – the property will serve its social function.”.

[2] GRAU, Eros Roberto. A ordem econômica na Constituição de 1988. São Paulo: Editora Malheiros, 2011, p. 250.

[3] ANTUNES, Paulo de Bessa. Áreas protegidas e propriedade constitucional. São Paulo: Editora Atlas, 2011, p. 36.

[4]CIVIL CODE/02: Art. 1228, § 1 – “The property right must be exercised in accordance with its economic and social purposes and in such a way that the flora, fauna, natural beauty, the ecological balance, and historical and artistic heritage are preserved, in accordance with the provisions of a special law, as well as avoiding air and water pollution.”.

[5] WASHIGTON, Carlos de Almeida. Direito de Propriedade: Limites Ambientais no Código Civil. São Paulo: Editora Manole Ltda., 2006, p. 54.

[6] FEDERAL CONSTITUTION/88: Art. 225 – “Everyone has a right to an ecologically balanced environment, which is for common use and is essential to a healthy life quality, thereby the Government and the society have the duty to protect it and preserve it for the present and future generations”.

[7] LEAL, Rogério Gesta. A função social da propriedade e da cidade no Brasil: aspectos jurídicos e políticos. Porto Alegre: Livraria do Advogado/ Edunisc, 1998, p. 120.

[8] GRAU, Eros Roberto. Princípios Fundamentais de Direito Ambiental. São Paulo: Editora Revista dos Tribunais, nº 02, 1997, p. 50.

[9] FENSTERSEIFER, Tiago. Direitos Fundamentais e Proteção do Ambiente – A dimensão ecológica da dignidade humana no marco jurídico-constitucional do Estado Socioambiental de Direito. Porto Alegre: Livraria do Advogado Editora, 2008, p. 215.

[10] DANTAS, Marcelo Buzaglo; PILATI, Luciana Cardoso. Direito Ambiental simplificado. São Paulo: Saraiva, 2011, p. 13.

[11] SARNO, Daniela Campos Libório Di. Elementos de Direito Urbanístico. Barueri, SP: Editora Manole Ltda., 2004, p. 48.

 SILVA, José Afonso da. Direito Urbanístico Brasileiro. São Paulo: Malheiros, 2000, p. 134.

[13] MEIRELLES, Hely Lopes. Direito de Construir. São Paulo: Malheiros, 2000, p. 115-116.

[14] MEIRELLES, Hely Lopes. Direito de Construir. São Paulo: Malheiros, 2000, p. 116.

[15] MATTOS, Liana Portilho. Estatuto da Cidade Comentado. Belo Horizonte: Mandamentos, 2002, p. 41.

[16] CANOTILHO, José Joaquim Gomes, LEITE, José Rubens Morato. Direito Constitucional Ambiental Brasileiro. São Paulo: Saraiva, 2010, p. 297/298.

[17] CARDOSO, Fernanda Lousada. Direito Urbanístico. Salvador: Podivm, 2010, p. 92.

[18] CARDOSO, Fernanda Lousada. Direito Urbanístico. Salvador: Podivm, 2010, p. 100.

[19] CARDOSO, Fernanda Lousada. Direito Urbanístico. Salvador: Podivm, 2010, p. 100.

Autor: Laura Santiago • email: laura.santiago@ernestoborges.com.br