{"id":25334,"date":"2016-05-18T08:00:55","date_gmt":"2016-05-18T11:00:55","guid":{"rendered":"http:\/\/www.rioonwatch.org\/?p=25334"},"modified":"2018-05-18T09:45:10","modified_gmt":"2018-05-18T12:45:10","slug":"what-does-the-brazilian-constitution-say-about-housing-rights-legal-frameworks-for-social-housing-in-brazil","status":"publish","type":"post","link":"https:\/\/rioonwatch.org\/?p=25334","title":{"rendered":"What Does the Brazilian Constitution Say About Housing Rights?"},"content":{"rendered":"

Clique aqui para Portugu\u00eas<\/em><\/strong><\/a><\/p>\n

This is the first in a series of three articles<\/a> summarizing reports on\u00a0Brazilian housing law, organized by the Cyrus R. Vance Center for International Justice<\/a> at request of\u00a0Catalytic Communities<\/a>. The first\u00a0report, summarized below, was\u00a0<\/em>produced by Mattos Filho Advogados<\/a>. To read the actual report, click here<\/a>.\u00a0<\/em><\/p>\n

Background<\/h3>\n

Affordable housing remains a highly contested topic all around the world today. In Rio de Janeiro, this is no different. In 2011 the Pereira Passos Institute<\/a> reported Rio had a\u00a0housing deficit\u00a0of 148,000<\/a>\u00a0affordable units, while the federal government estimated that the shortage in 2010 was 220,774 homes<\/a>.\u00a0Rio de Janeiro faces an uphill battle to meet the demands of its lower income population;\u00a0the population of the city’s favelas grew 28%<\/a>\u00a0in the first decade of the 21st century, compared to an overall growth rate in Rio of 3.4%. Today 1.4 million Cariocas live in the city’s approximately 1,000 favelas.<\/p>\n

Over\u00a0the last 60 years, there have been attempts to upgrade favelas<\/a> through a number of\u00a0public policy programs with ambitious, unattained goals. Their levels of success have varied, but they have all been backed by strong legal protections. The federal, state, and municipal governments all support social interest housing in some context, whether explicitly or through policy programs. The truth is that after nearly 120 years of favelas<\/a> being permitted to develop into the primary vehicle for social housing in Brazil, the nation has established relatively strong squatter’s rights. And yet, Brazil bears fame as one of the countries with the worst land inequality<\/a> in the world. The question remains: if there are such strong legal provisions, then why are so many favela residents nonetheless at risk of eviction<\/a>? And why is there still such a huge (and growing) housing deficit<\/a>?<\/p>\n

Rather than specifically analyzing policy<\/a> programs or the history of favela upgrading<\/a>, both of which have been done elsewhere on this site, this piece will focus specifically on listing and explaining some of the codified local, state and federal\u00a0laws that protect the interests of favelas and affordable housing efforts in Rio de Janeiro and which are described in the Mattos Filhos report.<\/p>\n

\"Cantagalo.<\/a><\/p>\n

Brazil’s Constitution: Land Must Serve a Social Function<\/strong><\/h3>\n

Brazil\u2019s Constitution<\/a> ratified in 1988 has strong provisions for land\u00a0to serve a social function. Clauses<\/strong> 22 and 23<\/strong>\u00a0in Article 5<\/strong> establish the right to property, and then assert\u00a0that property must perform a\u00a0social function. Although not specifically explained in the Constitution, the\u00a0social function of land<\/a>\u00a0can be\u00a0understood to mean that legislation on and the allocation of land should result in\u00a0more equitably distributed land and distribute the \u201cbenefits and disadvantages of urbanization\u201d in a fair way. It also means that urban policy should promote the public interest.<\/p>\n

Clauses 24 and 25 of Article 5<\/strong> allow the government to take land for \u201cpublic necessity\u201d or for social interest if a fair amount of money is provided as compensation before taking the land. More specifically, Clause 25 allows the government to take private property in the case of public danger, while requiring the government to provide adequate compensation as well.<\/p>\n

Article 6<\/strong> of the Constitution reaffirms the social right to housing<\/a> along with health<\/a>, food, education<\/a>, security<\/a>, protection of motherhood and childhood, and assistance for people in poverty<\/a>.<\/p>\n

Further in the Constitution, in Article 21 Clause 20<\/strong>, the federal government not only continues to guarantee housing as a right, but also identifies the federal government as the director of urban development, which it classifies as housing<\/a>, sanitation<\/a> and urban transportation<\/a>. In Article 23 Clause 9<\/strong>, the Constitution says the federal, state, and local governments all have the power to promote housing construction programs and the improvement of housing.<\/p>\n

Article 170<\/strong> of the Constitution states the country’s economic order is based on the \u201cvalue of human work and on free enterprise,\u201d but also in concordance with social justice. Relating to federal housing policy, the Constitution lists the social function of private property as a principal means to achieving this social justice.<\/p>\n

In Articles 182 and 183<\/strong> the Brazilian government designates urban policy to be carried out by the municipal government. Along with ensuring that cities have a master plan, that urban land fulfills its social purpose, that prior and fair compensation for land is assured, and that unused land is used to its fullest social potential, Article 183 specifically allows for adverse possession<\/a> of land. Adverse possession is when an individual who occupies\u00a0an area for a given period (usually 10-15 years) is permitted to file to acquire the land. This can only happen if the land is used without interruption or contest\u00a0and if\u00a0the land is used as a home for a family, thus serving a social function. The Brazilian Constitution stipulates this at 5 years in urban areas, up to 250 square meters.<\/p>\n

The State Constitution<\/strong><\/h3>\n

Article 230<\/strong> of the State Constitution of Rio de Janeiro<\/a> clearly lists the tools the State can use to guarantee the constitutional\u00a0social function<\/em> of cities and property is maintained. Some of these tools include:<\/p>\n