Having the right over land after a certain time of use is not just a current demand. Dating from 455 B.C. in Rome, usucaption was established in the Law of the Twelve Tables, as a form of acquisition of furniture or real estate by continued possession for one or two years. The etymology of the word indicates this: capio means “to take” and usu means “by use”. However, only the Roman citizen would have this right, which at the time was not extended to foreigners. Therefore, the peregrine could even make use of certain land, but could have its possession claimed by a Roman citizen at any time.
With time and the expansion of the Roman Empire, the peregrine possessor (who had no access to usucaption) was granted with a kind of prescription, as an exception based on the possession of the thing for a long time, within 10 and 20 years, serving as a defense against any claim. The legitimate owner would no longer have access to possession if he was negligent for the long term, but the limitation exception did not imply loss of property. Long afterwards in AD 528, the two concepts were unified so that time of use would guarantee possession.
In Brazilian law, the acquisition of property over time is in the Book of Property Law of the Civil Code. According to the complement to the 2010 Census, in 2015 there were 11,425,644 people in Brazil – equivalent to 6% of the country’s population – living in “subnormal agglomerations”, the technical name given by the IBGE (Brazilian Institute of Geography and Statistics) to designate places such as favelas, invasions, and communities.
About 80% of these communities are located on public land and, according to the Federal Constitution, with the exception of some specific cases, cannot be formalized through usucaption. Usucaption is the right provided by law by which a citizen acquires possession of a movable or immovable property as a result of its use, giving it a social function, for a certain time. Many informality situations arise only from legal and documentary issues, which can be remedied by the institute of usucaption, through the titling of the occupants.
The social and economic benefits that formal ownership provides are increasingly recognized, so the search for a rigid and reliable registry system has been the north of recent legislative changes in Brazil. The legislator seeks to provide mechanisms to regularize time-consolidated situations, such as land regularization and out-of-court usucaption, as well as moving towards the centralization of real estate information in a single source.
What is Usucaption
Usucaption is an instrument of urban policy and also a form of acquisition of real estate. It can be requested in cases where the person is resident in the property/part of land, or makes constant use of it for more than 10 years, without complaint from its original owner. In this case, the person who requests the ownership rights of the property cannot have obtained it in a violent, clandestine or illegal manner, but must be occupying it with the owner’s consent.
In general, usucaption can be requested by a person who occupies a piece of land and gives it a social function (family housing, for example). In this way one becomes responsible for the site for a certain period of time, also assuming the tax responsibilities, such as paying IPTU, lighting, water, etc. This allows the person to make a legal request for the land to be legally owned by him/her, so that it can be left as an inheritance for his/her children, to guarantee compensation in cases of expropriation and, in short, to have his/her own house legalized. In most cases this process is carried out peacefully and directly with justice.
To obtain the usucaption documents are necessary to prove that the applicant is living and makes use of the place, such as water, electricity, telephone, IPTU bills or any other proof of residence. In addition, the person must have been living there for more than 10 years.
There are two stages in the usucaption process, the engineering and advocacy stage. This article will focus on the engineering stage, as it is the field of contribution of the ESF network to this type of work.
As for the engineering stage, it basically consists of preparing the blueprints and registration to prove the location of the property on the ground. Therefore, two blueprints are necessary: locacional and situacional. The location blueprint has the function of renting the building on the ground, presenting its measurements. And the situational one shows the land within the urban context in which it is inserted, that is, it positions it within the neighborhood/district/city. In order to make these blueprints, technical visits are necessary in order to measure the dimensions of the property, the land, the sidewalk/foot and the streets around the property in question. These measures are essential because they will be compared with the original land deed by the judge.
One tool to assist the engineer in his task is AutoCAD. Some tips on how to achieve the scope are in the standard model made by the ESF network, using as data, the experiences obtained from the projects performed and which serves as a basis for other teams to structure similar projects, knowing risks and tips from those who have already done.
In addition to the measures, information is required from neighbors bordering the field, these are called confronters in the process of usucaption, without their identification it is not possible to follow the process for analysis.
Within the Engenheiros Sem Fronteiras-Brasil network, the Juiz de Fora chapter stands out in the execution of usucapion projects. With the work of the chapter several families have been able to have their homes regularized without any costs with the process engineering work.
As technical visits, preparation of blueprints, and registration with the Regional Council of Engineering and Agronomy (CREA) is necessary, the expenses with this stage are usually high and not very accessible for people in greater social vulnerability, considering that there are still costs with the legal part. Therefore, when executing the project, it is essential to seek out the people who really need the service to have their home fully regularized before the law.
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The ESF’s work, in these cases, consists on technical visits to the beneficiaries to take the measures of the property and elaborate the situational and locational blueprints.
In addition, it is also necessary to ask the neighbors (confronters) to provide a copy of their documents (Identity and CPF) because these data must be included in the situational blueprints and also in the process of usucaption.
This is a project developed by ESF that is part of the Infrastructure and Basic Assistance axis, which is one of the four axes of the network’s activities and is also aligned with Objective 11, within the UN Sustainable Development Goals, which seeks to make cities and human settlements inclusive, safe, resilient and sustainable.
Image 1 – Juiz de Fora Chapter – Usucaption Rosana – Filgueiras.
Source: Members of Juiz de Fora Chapter.
Image 2: Usucaption Sr. Edino
Source: Members of Juiz de Fora Chapter.
The Cantagalo Project is about the land regularization of the Cantagalo community in Rio de Janeiro. The project of the Atlantic Institute in partnership with residents and law firms had as its main objective to bring citizenship to the population. The institute conducted the land registry survey, community mapping, social-economic registration and the floor plan of the location of each home and their respective confronters. The documentation of the homes located on public lands was passed on to the public authorities so that they could grant the titles to the residents. The homes located on private lands are being processed in the courts under the legal supervision of the Atlantic Institute.
This project was so successful that it is expected to be repeated in other cities and also gave rise to a book, with testimonials from the creators, residents and beneficiaries who were part of the process. The type of usucaption applied in this case is a group type.
Image 3 – Book about the Cantagalo Project
Mariana Martins Gomes
Anna Beatriz de Aguiar Bergo Coelho