For the original in Portuguese published on EBC click here.
Brazil has strong housing rights legislation. Why, then, is it not applied?
Brazil has the necessary laws to relieve problems with housing and land regulation. However, the government, especially civil servants from the administrative and judicial sectors, as well as the people who need a home, still do not know what tools are available to assist them in accessing this right. The findings come from a study entitled, ‘Didn’t Have a Roof, Didn’t Have Anything: Why the instruments for land regulation (still) have not guaranteed the right to housing in Brazil’ (Não Tinha Teto, Não Tinha Nada – Porque os instrumentos de regularização fundiária (ainda) não efetivaram o direito à moradia no Brasil), which was presented September 1, 2015 to the Ministry of Justice in a seminar on the right to housing.
Focused on 10 Brazilian state capitals, the study investigated the effectiveness of instruments for land rights in situations involving collective urban adverse possession (when a group of people peacefully occupy land and after five years obtain the right to the land from the Ministry of Justice, then divide it between themselves); the concession of land for special use as housing (when the government gives concessions to use the land but the government continues to own it); and legitimized possession (when the government delineates an area and provides possession rights to the citizen which, after five years, are transformed into full property rights).
The coordinator of the study, Professor Arícia Fernandes of the State University of Rio de Janeiro (UERJ), states that the study tries to understand why the tools created to resolve the country’s housing problems have not had the desired effects. According to Arícia, the Judiciary has a very conservative outlook on these issues, which in turn makes it very difficult to realize the social impact of those instruments. The professor summed up that the public administration does not know how to apply the law, and the beneficiaries don’t know how to gain access to the tools provided by the law in order to regularize their housing situation.
“The legislation constitutes an advancement, but its tools are barely used.” Arícia explains. “We concluded that neither the government nor the beneficiaries understand the tools available to regulate housing, and that this happens because of a lack of publicity, dissemination of information and debate on the subject, as much within the government as for the beneficiaries. There is also a lack of training (of the public actors involved in the process), in order to give greater clarity to these policies,” she added.
According to Arícia, the Judiciary still employs “an 18th century vision” about issues relating to land and housing. “[The Judiciary] needs to better understand the social function of housing regulations, because it is not about giving houses, but rather it is a question of individual and collective rights, in service of the public interest. The Judiciary has great difficulty in judging collective issues. So there is a strong tendency to dismember collective actions into separate batches and to treat them as individual rights claims.”
“People understand that housing regulation depends on political will, rather than seeing it as public policy. The challenge is to make the government understand that the community is not just a source of votes and government decisions are not about providing favors. There is a subjective right on this issue, involving the right to citizenship. These people have been there for years and they have a right to an address,” Arícia affirms. The researcher highlighted the need for the authorities to understand that regulation must go beyond focusing merely on possession and must also consider issues with land rights, urban planning, and social and environmental factors. “It’s about giving a city to the people with the necessary infrastructure and services. In this sense, the Minha Casa, Minha Vida program has helped.”
According to the Secretary for Legislative Affairs for the Ministry of Justice, Gabriel Sampaio, by presenting diagnoses, the study becomes relevant by “opening a dialogue” with each of the three branches of government. “[This] helps develop the existing instruments to guarantee housing for Brazilian citizens and allows the country to advance in the provision of fundamental rights to the city and to housing.”
Beginning in March 2014, the study examined land regulation norms and the judicial, administrative, and notarial barriers to their application in ten state capitals: Brasília, Belém, Fortaleza, Recife, Salvador, Belo Horizonte, Rio de Janeiro, São Paulo, Curitiba, and Porto Alegre.