The social function of property is an obligation inherent to properties that their use serves, in addition to the individual rights of the owner, the public interest.
The social function of property is an indeterminate legal concept, that is, its application and its effects are not exact. Thus, each case is analyzed in isolation and the social function of each property is evaluated within its own context.
The Federal Constitution of 1988 provides for the social function of property in its article 5, item XXIII:
Art. 5th All are equal before the law, without distinction of any kind, guaranteeing Brazilians and foreigners residents in the country, the inviolability of the right to life, liberty, equality, security and property, under the terms following:
XXIII - the property will serve its social function;
According to the Federal Constitution, properties must fulfill their social function. This means that the use of a certain good cannot exclusively serve the owner's interest, but also the public interest.
In cases where the property does not fulfill its social function, the individual right of the owner may be relativized, suffering limitations and State interventions, so that adjustment measures are taken so that the property meets the interests of the collectivity.
social function of urban property
The social function of urban properties is determined by the city's master plan (a document that brings together local development plans and policies). According to article 182 of the Federal Constitution:
Art. 182. The urban development policy, carried out by the municipal government, according to general guidelines established by law, Its objective is to organize the full development of the city's social functions and ensure the well-being of its inhabitants.
§ 1 The master plan, approved by the City Council, mandatory for cities with more than twenty thousand inhabitants, is the basic instrument of the development and urban expansion policy.
§ 2 The urban property fulfills its social function when it meets the fundamental requirements of city ordering expressed in the master plan.
The Constitution establishes that any city with more than 20,000 inhabitants must have a master plan. It must contain the requirements to be met by the properties so that the social function is considered met. For this reason, the social function is always evaluated according to the specific case.
What if the social function of urban property is not met?
In cases where urban property does not fulfill its social function, such as unused land, for example, the State may:
- require the owner to build on site;
- increase the value of the IPTU (tax on urban land ownership) progressively;
- expropriating the property, indemnifying the owner.
The coercive measures used by the State so that the property fulfills its social function must be taken successively, that is, one after the other, as the previous one does not take effect. Thus, if the owner builds an empty land and uses it, he should not have his IPTU increased. These rules are provided for in §4 of article 182 of the Federal Constitution:
§ 4 It is possible for the municipal government, through a specific law for the area included in the master plan, to demand, under the terms of federal law, the owner of unbuilt, underutilized or unused urban land, which promotes its proper use, under penalty, successively, of:
I - compulsory subdivision or building;
II - progressive urban property and territorial property tax over time;
III - expropriation with payment through public debt securities issued previously by the Federal Senate, with redemption term of up to ten years, in annual, equal and successive installments, assured the real value of the indemnity and interest cool.
The social function of property can be considered a principle of urban policy, as it directs the application of various norms and measures for the best use of properties.
Social function of rural property
Rural property has different rules from urban property when it comes to a social function. Article 186 of the Federal Constitution provides:
Art. 186. The social function is fulfilled when the rural property simultaneously meets, according to criteria and degrees of demand established by law, the following requirements:
I - rational and adequate use;
II - proper use of available natural resources and preservation of the environment;
III - compliance with the provisions that regulate labor relations;
IV - exploitation that favors the well-being of owners and workers.
Therefore, to fulfill the social function, the rural property must meet all the requirements set out in the Constitution, and not in the master plan.
If the rural property does not fulfill its social function, the Union may expropriate it for the purpose of agrarian reform, indemnifying the owner. Therefore, in the case of rural property, there is no provision for mandatory construction or tax increases. In this sense, article 184 of the Federal Constitution provides:
Art. 184. It is incumbent upon the Union to expropriate for social interest, for purposes of agrarian reform, the rural property that is not fulfilling its social function, upon prior and fair compensation in agrarian debt securities, with a clause for the preservation of the real value, redeemable within a period of up to twenty years, from the second year of their issuance, and whose use will be defined in law.
According to Article 185 of the Constitution, the State cannot expropriate:
- the small and medium rural property, defined as such by law, as long as its owner does not have another;
- the productive property.
The social function of property is also considered a principle of agrarian and land policy, since establishes parameters for the application of norms and measures for the best use and distribution of the Earth.
See too:
- Constitutional right
- Administrative law
- Land reform
- Private propriety