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B R A Z I L
L a w, L a n d Te n u r e a n d G e n d e r R e v i e w : L a t i n A m e r i c a
ZAMBIA
IN
B R A Z I L
2005
Disclaimer
The designations employed and the presentation of the material in this publication do not imply the expression of any
opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory,
city or area, or of its authorities, or concerning delimitation of its frontiers or boundaries, or regarding its economic system
or degree of development. The analysis, conclusions and recommendations of this publication do not necessarily reflect
the views of the United Nations Human Settlements Programme, the Governing Council of the United Nations Human
Settlements Programme, or its Member States.
This publication has been produced in partnership with the Centre on Housing Rights and Evictions (COHRE) – Americas
Office.
HS/792/05E
ii L a n d Te n u r e , H o u s i n g R i g h t s a n d G e n d e r R e v i e w : L a t i n A merica
BRAZIL
Security of tenure is one of the cornerstones of Millennium Development Goal 7, Target 11 on the
improvement of the living conditions of slum dwellers. It also plays a crucial role in the implementation
of Target 10 on access to improved water and sanitation and is thus the main focus of UN-HABITAT’s
Global Campaign for Secure Tenure.
While urbanisation trends and living conditions of the urban poor vary considerably from country to
country in Latin America, the region is generally characterised by rising poverty and social inequality. The
majority of urban dwellers hold precarious tenure rights to the land they occupy, hindering their access to
basic infrastructure and services, including water and sanitation, health and education, and rendering them
vulnerable to forced evictions.
Through the generous support of the Government of the Netherlands, UN-Habitat is pleased to publish its review of the legal and
policy frameworks governing urban land tenure in Latin America. This report provides an overview of the situation in all twenty coun-
tries of the region as well as four case studies on Brazil, Colombia, Mexico and Nicaragua. These case studies provide a comprehensive
analysis of the laws and policies governing urban land tenure, with a special focus on women’s rights to land and housing. National
experts in each country have conducted extensive research on the often-complex legal issues which hinder or enable the efforts of
Governments, local authorities and their civil society partners in attaining the Millennium Development Goals.
It is noteworthy that Latin America has registered some progress in achieving these goals. The region is home to a number of positive
and innovative laws and practices providing security of tenure, and a well-established civil society has contributed significantly to
advancing a rights-based approach to housing. There remains, however, a lot to be done. Reducing inequality is a key cross cutting issue
that needs to be incorporated in all sectoral reforms in the region. Land reform is pivotal to furthering this objective while providing
security of tenure constitutes an important first step in reducing the vulnerability of and the constraints facing the urban poor. Secure
tenure alone will not, however, be sufficient and a clear message that emerges from this review is that good urban governance is
essential to achieving the full effectiveness and desired impact of tenure security programmes.
This review contains findings and recommendations for both immediate and longer-term law reform to strengthen the tenure rights
of all people, especially the poor and women. While they will further guide and inform UN-HABITAT’s normative work through its
two Global Campaigns for Secure Tenure and Urban Governance, it is my sincere hope they will contribute to furthering broad-based
dialogue and engagement in land reform and security of tenure in all countries in Latin America in support of attaining the Millennium
Development Goals.
A c k n o w l e dgements
Regional Coordinator Law, Land Tenure and Gender Review in Latin America:
Leticia Marques Osorio, Centre on Housing Rights and Evictions (COHRE) – Americas Office
Regional Overview: Leticia Marques Osorio, with assistance from Marina Schneider Comandulli (COHRE)
Women’s rights sections in regional overview: Eugenia Zamora (supported by Felicia Ramírez and Carla Morales), Marjolein
Benschop and Leticia Osorio
Executive Summary, Introduction, restructuring and shortening of final draft: Stephen Berrisford and Michael Kihato
Brazil Chapter
Nelson Saule Jr., Special Rapporteur on Adequate Housing for Brazil
Nelson Saule Jr. would like to thank Karina Uzzo, lawyer, for her collaboration on this research.
Special thanks also to the Right to the City Team of lawyers at Institute Polis: Patricia de Menezes Cardoso, Paulo Romeiro,
Mariana Levy Piza Fontes, Thais Chueiri, Mariana Mencio and Julia Giovanetti
This publication was made possible through funding from the Government of the Netherlands.
iv L a n d Te n u r e , H o u s i n g R i g h t s a n d G e n d e r R e v i e w : L a t i n A merica
BRAZIL
L i s t o f A b breviations
AEIS Special Areas of Social Interest
PT Workers Party
UN United Nations
vi L a n d Te n u r e , H o u s i n g R i g h t s a n d G e n d e r R e v i e w : L a t i n A merica
BRAZIL
T ABLE OF C O N T E N T S
FOREWARD iii
EXECUTIVE SUMMARY 1
viii L a n d Te n u r e , H o u s i n g R i g h t s a n d G e n d e r R e v i e w : L a t i n A merica
BRAZIL
REFERENCES 81
APPENDIX 91
8 This new framework for poverty reduction arose in 1999 after much pressure
from civil society and the Jubilee 2000 movement, which called for debt reduction on a
massive scale. The PRSP framework includes about 70 countries, including a number
of low-income and highly indebted countries from a range of geographical regions. Nine 14 Pazzinato, A. L. (1995:385).
countries in Latin America and the Caribbean adopted this framework.
15 An extensive process of the decentralisation of governmental power has been
7KH 3RSXODWLRQ 'LYLVLRQ RI WKH 8QLWHG 1DWLRQV GH¿QHV DV ³XUEDQ´ DQ\ VHWWOHPHQW taking place over the last two decades, with direct election of governors and mayors and
ZLWKDWOHDVWUHVLGHQWVDFODVVL¿FDWLRQDGRSWHGE\VRPHFRXQWULHVLQVXFFHVVLYH with an increased transfer of tax receipts to the provinces and municipalities. Since 1980,
censuses. Urbanisation is, therefore, a process involving an increase in the proportion of the number of republics where the mayors are chosen by direct elections has increased
WKHSRSXODWLRQWKDWLVXUEDQRUVLPSO\WKH³XUEDQSURSRUWLRQ´2XFKR- from three to 16.
10 Ibid. 16 The Latin American fragility of the democratic process displays certain peculiarities:
the loss of democratic state power is aggravated by the social inequalities, by the high
11 Benasaya, G. et al. (1992:276).
levels of poverty, by corruption, and by the growing increase in the violence statistics and
12 Clichevsky, N. (2000 :12). WKHLOOHJDOGUXJWUDI¿F2FDPSR-RVp$
7DEOH :RPHQ·V UHSUHVHQWDWLRQ LQ QDWLRQDO OHJLVODWXUHV LQ 6RPH VWDWHV KDYH DOVR DGRSWHG /DZV RI (TXDOLW\ RI
Latin America 2SSRUWXQLWLHVEHWZHHQ0HQDQG :RPHQ7KHVHODZVKDYH
been accompanied by the institutionalisation of the gender
Country Number of women As % of total Year theme through the creation of national mechanisms of
in legislature women, which act as directing entities for gender issues
Argentina 79 Lower House 30.7% 2001 within public institutions. All Latin American countries sub-
MHFWWRWKLVVWXG\KDYHDSSURYHGQDWLRQDOSODQVRQWKHHTXDOLW\
24 Senate 33.3% of opportunities and treatment between men and women,
Bolivia 25 Lower House 19.2% 2002 H[FHSWIRU8UXJXD\DQG9HQH]XHOD 19
3 Senate 9.8%
Venezuela 16 9.7% 2000 19 Cepal. L. D. (2001).
18 Charter prepared by Ramirez, Felicia, Director of the Centre for Human Progress, 21 López M. Eduardo (1996).
which was based on the InterParliamentary Union.
The modern government structure of the region was strongly concepts continue to be the way in which regulation of the
LQÁXHQFHG E\ WKH &RQVWLWXWLRQ RI WKH 8QLWHG 6WDWHV IURP civil code is perceived in much of Latin America, in spite of
which Latin America copied two institutions: the federal and the fact that the majority of these codes have been reformed,
presidential systems. doing away with formal legal discrimination.
The Latin American civil codes distinguish between property ,Q %ROLYLD &RORPELD 3DUDJXD\ DQG &RVWD 5LFD WKH ULJKW
and possession. In the civil law tradition, ownership is a “real to housing is considered a state duty. In the Colombian
ULJKWµDFFRUGHGVSHFLÀFUHFRJQLWLRQ,WLVDEDVLFIXQGDPHQ- Constitution the right to housing appears as proceeding
tal right at the root of the property rights system. Possession IURPWKHGLJQLW\RI WKHKXPDQSHUVRQDQGLQWKHHTXLYDOHQW
can be separated from ownership, can be accessed in differ- 9HQH]XHODQ GRFXPHQW WKH ULJKW WR KRXVLQJ FRQVWLWXWHV DQ
ent ways and can carry its own set of different rights. Among obligation of the state and the citizens that is to be imple-
other rights to property included in the code are the right of mented progressively. The Argentine Constitution offers one
use, servitude, the right of way and prescription. RI WKHEHVWH[DPSOHVRI KRZDVWDWHFDQSURWHFWWKHULJKWRI
DGHTXDWHKRXVLQJZKHQLWVXEMHFWVWKHLQWHUSUHWDWLRQRI WKH
´3RVLWLYHSUHVFULSWLRQµLVDPHWKRGFUHDWHGE\ODZIRUDFTXLU- constitutional language to that established in the international
ing ownership. Known as XVXFDSLRQLQ6SDQLVKRUXVXFDSLmR human rights instruments.
LQ 3RUWXJXHVH IURP WKH /DWLQ XVXV FDSHUH prescription has
its origin in enactments of the civil law, which have been The right to property is handled in the national constitutions
FRQÀUPHGE\&DQRQ/DZ LQGLIIHUHQWZD\V7KHPDMRULW\RI FRXQWULHVGHÀQHSURSHUW\DV
DQDEVROXWHULJKWUHJXODWHGE\DFLYLOFRGH²WKDWLVE\ODZVRI
The civil code also established the institution of the public a private nature. Some countries, however, such as Colombia,
property registry and, later on, the public property cadastre. %UD]LO 3HUX DQG 9HQH]XHOD PDLQWDLQ WKDW SURSHUW\ LPSOLHV
The civil code decreed that the male was the head of the GXWLHVDQGWKDWLWKDVDVRFLDOIXQFWLRQ0H[LFRDOWKRXJKLWZDV
family, and that only formal marriage would be recognised WKHÀUVWFRXQWU\LQWKHZRUOGWRDWWULEXWHDVRFLDOIXQFWLRQWR
as generating rights and obligations. This meant that inherit- property in its 1917 Constitution, later introduced a series of
DQFHULJKWVRI H[WUDPDULWDOFKLOGUHQZHUHQRWUHFRJQLVHG7KH amendments that represented a considerable retrogression.
maintenance duties were established especially for the minors, 7KH0H[LFDQH[SHULHQFHUHÁHFWVDFRPPRQSUREOHPLQ/DWLQ
elderly, incapable and, in the case of inheritance, a conjugal $PHULFD WKH IRUPDO FRQTXHVW RI ULJKWV GRHV QRW QHFHVVDU-
SRUWLRQ LI WKH ZLGRZ IXOÀOOHG DOO UHTXLUHPHQWV 7KHVH OHJDO 22 The complete texts of the constitutional articles on housing rights may be consulted
on the website www.unhabitat.org/unhrp/pub.
ily mean they will become effective, nor even that they will re- WKH ULJKW WR KRXVLQJ DQG ODQG :LWKRXW VHFXULW\ RI SRVVHV-
main on the law books, even if constitutionally guaranteed. VLRQ²QRPDWWHUZKHWKHUIRUPDORULQIRUPDO²WKHULJKWWR
housing is under permanent threat, and the risk of eviction
Latin American national constitutions do not guarantee or forced dislocation will always be imminent. 24 Security
a universal right to land to all persons as they do with the of tenure, because it is a key element in the human right
ULJKW WR SURSHUW\ +RZHYHU WKH\ JHQHUDOO\ SURYLGH VSHFLÀF WRKRXVLQJVKRXOGEHJXDUDQWHHGWRDOOHTXDOO\DQGZLWKRXW
regulations to the right to land of special groups, such as discrimination. 25
indigenous people, black communities, and those living in
informal urban and rural settlements. 3 Int ernat ional Law
The manner of ownership and control over land can deter- Most countries in the region are party to the main interna-
mine how wealth, political and economic power is shared. tional and regional human rights instruments. In the appen-
2QHRI WKHGLIÀFXOWLHVDVVRFLDWHGZLWKGHYHORSLQJHIIHFWLYH GL[WKHPRVWUHOHYDQWLQWHUQDWLRQDOKXPDQULJKWVFRQYHQWLRQV
international laws and policies on land rights stems from are listed and an overview is provided of which countries are
WKH LPPHQVHO\ FRPSOH[ DQG GLYHUVH ZD\V E\ ZKLFK ODQG LV party to which instruments.
DFFHVVHG DQG WKH RIWHQ JDSLQJ H[SDQVH EHWZHHQ WKH GDLO\
UHDOLW\RI ODQGDFTXLVLWLRQDQGWKHSRVLWLRQRI IRUPDOODZ 23 4 Land Ref orm in t he Region
In terms of legislation and public policies, countries through- %HIRUH /DWLQ $PHULFD·V SULQFLSDO ODQG UHIRUPV WRRN
RXWWKHUHJLRQKDYHDSSURDFKHGWKHODQGTXHVWLRQLQGLIIHUHQW SODFHDVWKHUHVXOWRI VRFLDOUHYROXWLRQVLQ0H[LFR&XEDDQG
ways. Some have dealt with this subject in a manner that is %ROLYLD,Q0H[LFRODQGUHIRUPUHVXOWHGLQWKHUHGLVWULEXWLRQ
supportive of treating land as a human rights issue, guided of about 50 percent of the territory to communities or HMLGRV
by appropriate law and policy; other countries have allowed DQGLQGLJHQRXVSRSXODWLRQVEHQHÀWLQJPLOOLRQSHRSOHSDU-
market forces or customary law to determine who has access ticularly during the period of 1915-1930 and after 1960. In
to land. Some combine state intervention with market-driven Cuba, the reform included tenants on sugarcane plantations,
policies. land occupiers, landless peasants and rural wageworkers. 26
7KH%ROLYLDQUHYROXWLRQLQEHQHÀWHGDERXWWKUHHTXDU-
$Q HQRUPRXV GLVWDQFH H[LVWV EHWZHHQ WKHRU\ DQG SUDFWLFH WHUVRI WKHDJULFXOWXUDOIDPLOLHVE\PHDQVRI H[SURSULDWLRQRI
ZKHQ LW FRPHV WR KRXVLQJ )UHTXHQWO\ HYHQ WKH PLQLPXP properties worked in pre-capitalist forms of tenure 27 and of
UHTXLUHPHQWVIRUDGHTXDWHKRXVLQJDUHQRWFRQWHPSODWHGLQ
WKH QDWLRQDO OHJLVODWLRQ WKH GHVLUHG HQG DGHTXDWH KRXVLQJ 24 7KH 8QLWHG 1DWLRQV *OREDO &DPSDLJQ IRU 6HFXULW\ RI 7HQXUH VWDWHV ³VHFXULW\ RI
tenure stems from a variety of norms which regulate the right of access and use of land
is clearly cited but without any indication of the means to and property, and from the fact that it is a legally justiciable right. Tenure can be effected
DWWDLQLWVHFXULW\RI SRVVHVVLRQDYDLODELOLW\RI VHUYLFHVDQG in a variety of ways depending on the constitutional and legal framework, on the social
norms, the cultural values, and up to a certain point, the individual preferences. A person
infrastructure, maintenance possibilities, public programmes or family has security of tenure when they are protected from involuntary removal from
their lands or residences, except under exceptional circumstances, and then only by
DQGSROLFLHVLQYHVWPHQWV2QHRI WKHIDFWRUVZRUVHQLQJWKH mean of a recognised and agreed legal procedure, which should be objective, equitably
housing situation is the time spent converting constitutional applied, contestable and independent. These exceptional circumstances should include
situation where the physical security of life and property is threatened, or where the
KRXVLQJUHTXLUHPHQWVLQWRSUDFWLFDOODZ SHUVRQV EHLQJ HYLFWHG KDG WKHPVHOYHV RFFXSLHG WKH SURSHUW\ E\ IRUFH RU LQWLPLGDWLRQ´
UNCSH. (1999a).
27 Under this tenure type the farmers worked in exchange of the usufruct of a part
23 UNDP (2003). of the land.
unproductive or sub-used ODWLIXQGLRV FRPSULVLQJ IRXUÀIWKV agrarian reforms. 32 The revolutionary military government
of the land in the country. 28 in Peru also assisted the agrarian reform by distributing land
to those who would work it and produce crops. However, re-
In these reforms most women were discriminated against in JUHVVLYHODQGUHIRUPVZRXOGODWHUWDNHSODFHLQ0H[LFR&KLOH
terms of access to and management of land. The regular pro- DQG1LFDUDJXD7KHVHSURFHVVHVZKLFKFDPHWREHFDOOHGD
FHGXUHZDVWRIDYRXUWKHPDQDVIDPLO\KHDGDQGEHQHÀFLDU\ counter-reformation, returned land to the previous owners
a practice that was supported by most land reform legislation and privatised land that had earlier been collectivised.
in the 19th and 20th centuries. 29
Unfortunately, many of the progressive reforms proved to
In the 1960s, 17 Latin American countries initiated agrarian be patriarchal and gender discriminatory. 33 :RPHQ·V DELOLW\
UHIRUPSURFHVVHVZLWKDVVLVWDQFHIURPWKH86JRYHUQPHQW·V WR DFTXLUH ODQG ULJKWV ZDV OLPLWHG GXH WR OHJDO FULWHULD DQG
Alliance for Progress programme. 30 According to Deere and discriminatory practices that favoured men. In most cases,
Leon “the agrarian reform was seen as an ideal vehicle for a woman could only become a landowner by inheriting the
WKH SURPRWLRQ RI KLJKHU LQGH[HV RI HFRQRPLF JURZWK DV land from her husband or companion on his death. 34
ZHOODVHTXDOLW\VRFLDOMXVWLFHDQGPRUHVWDEOHJRYHUQPHQWVµ
However, the results obtained were minimal due to the power 5 Land and housing
of the great landowners and economic reliance on agricul- movement s in t he region
WXUDOH[SRUWVZKLFKSUHYHQWHGDJUHDWHUGLVWULEXWLRQRI WKH
land. 31 )RU H[DPSOH LQ (FXDGRU WKH JRYHUQPHQW RQO\ GLV- A wide array of social organisations is involved in the move-
tributed non-productive land, which facilitated the concen- ment for land and housing in Latin America. They include
WUDWLRQRI TXDOLW\ODQGLQWKHKDQGVRI WKHODUJHODQGRZQHUV WHQDQWV·DVVRFLDWLRQVKRXVLQJFRRSHUDWLYHVVRFLDOPRYHPHQWV
,Q 9HQH]XHOD KDOI RI WKH ODQG GLVWULEXWHG ZDV SXEOLF ODQG DQG1*2V
and high compensation was paid to large landowners whose
land made up the other half. In Brazil, the Land Statute set a %HVLGHV WHQDQWV· DVVRFLDWLRQV DQG VRFLDO PRYHPHQWV WKDW
minimum limit for the land to be distributed to each landless concentrate their efforts on advocacy and lobbying, there are
family for the purposes of agrarian reform, but did not place also cooperatives and community-based organisations that
DOLPLWRQWKHPD[LPXPVL]HWKDWHDFKLQGLYLGXDORZQHUFRXOG seek alternative solutions to the housing problem. In various
possess. countries, emerging social groups have conducted innovative
KRXVLQJH[SHULPHQWVEDVHGRQVHOIPDQDJHPHQWDQGRUJDQL-
Later, the Chilean government of Salvador Allende and the 32 In 1979, Nicaragua expropriated the land of large landowners. However, the
Sandinista agrarian reform could not be implemented in its entirety because of the severe
6DQGLQLVWD JRYHUQPHQW RI 1LFDUDJXD LPSOHPHQWHG UDGLFDO economic crisis combined with their loss of power in the 1990 election. The land destined
IRUODQGUHIRUPZDVWKHUHVXOWRIWKHFRQ¿VFDWLRQRIODUJHXQSURGXFWLYHSURSHUWLHVZKLFK
represented 52 percent of the land in 1978 and had come to represent only 26 percent in
2IWKHFRQ¿VFDWHGODQGSHUFHQWZDVGLVWULEXWHGWRODQGFRRSHUDWLYHVSHUFHQW
28 Deere, C. et al (2002).
formed state agro-industrial companies and 26 percent was individually distributed among
29 In Mexico, the reform privileged the heads of household who generally were men. landless rural workers. At the end of the revolution the cooperatives owned 13,8 percent
2QHRIWKHPDLQGHPDQGVRIRUJDQLVHGUXUDOZRPHQZDVWRUHFHLYHejido land irrespective of the land and the state companies owned 11,7 percent. See Centre on Housing Rights
of their marital status. In the 1970s, even when the law was amended to include other DQG(YLFWLRQV&2+5(
family members to the conditions of being ejido members, many women remained
33 Deere, C. (2002:131).
H[FOXGHGIURPPHPEHUVKLS,Q%ROLYLDWKHVWDWXVRIEHQH¿FLDU\WRODQGDOORFDWLRQVWKDW
have resulted from the land reform was limited to mothers and widows. Also, the majority 7KHDJUDULDQODZVUHIHUUHGWRWKHPDOHJHQGHUWRTXDOLI\WKHEHQH¿FLDULHVIRUDJUDULDQ
RILQGLJHQRXV ZRPHQGLGQRWEHQH¿WIURPODQGGLVWULEXWLRQ EHFDXVH WKH\ZHUHQHLWKHU UHIRUPSURJUDPPHV,QSUDFWLFHZRPHQZHUHQRWFRQVLGHUHGGLUHFWEHQH¿FLDULHV,WZDV
considered as household heads nor as farmers. SUHVXPHGWKDWPHQZHUHKHDGVRIKRXVHKROGDQGWKDWWKHEHQH¿WVJUDQWHGWRWKHPZRXOG
EHQH¿WDOOIDPLO\PHPEHUV7KLVSUHVXPSWLRQZDVGLUHFWO\UHODWHGWRWKHGLVSRVLWLRQVRI
30 These countries were: Argentina, Uruguay, Brazil, Chile, Peru, Bolivia, Costa Rica,
the majority of Latin American civil codes, in which husbands were considered the only
Guatemala, Mexico, Nicaragua, Colombia, Ecuador, Honduras, El Salvador, Dominican
representatives of the family and therefore legally responsible for the administration of the
Republic, Venezuela and Paraguay.
family properties and for all the economic issues. The system of grades implemented as a
31 Deere, C. (2002:101). ZD\WRHYDOXDWHSRWHQWLDOEHQH¿FLDULHVGLVFULPLQDWHGDJDLQVWIDPLOLHVKHDGHGE\ZRPHQ
sation. 357KHPRVWFRPPRQH[SHULHQFHVLQYROYHFRRSHUDWLYH violence against women, and economic rights. Peasant and
joint ventures to construct or improve housing. Thousands XUEDQ RUJDQLVHG ZRPHQ·V JURXSV DUH WKH PRVW DFWLYH LQ HI-
RI IDPLOLHVKDYHEHQHÀWHGIURPVXFKHIIRUWVLQERWK8UXJXD\ forts to improve access and rights to land and housing.
and Brazil. Interventions for rehabilitation or renovation of
central areas and the incorporation of social housing into Developments in Central America towards the end of the
these areas have recently been initiated in Brazil, Argentina 1990s indicate a strengthening of the movement of peasant
DQG 3HUX $OWKRXJK PDQ\ H[SHULHQFHV DUH IRFXVHG RQ PDW- movement, marked by the creation and consolidation of
WHUVUHODWHGWRKRXVLQJSURGXFWLRQÀQDQFLQJH[HFXWLRQDQG national networks and organisations of rural women. This
LQWHJUDWLRQZLWKWKHVRFLDOSROLFLHVPDQ\VRFLDOPRYHPHQWV is important for a number of reasons, not least that rural
DQG 1*2V KDYH VXFFHVVIXOO\ DGYDQFHG LQVWLWXWLRQDO DQG women are a new political actor both at the national and
normative projects. 36 regional levels.
YDFDQW ODQG 7KH 9LOOD ZDV IRXQGHG LQ LQ /LPD WKH ticipation of women in the construction of more than 7,000
capital of Peru, with the intention of sheltering poor families. houses in diverse regions of the country. In the same year,
1RWZLWKVWDQGLQJJRYHUQPHQWHIIRUWVWRHYLFWWKHRFFXSLHUV WKH1DWLRQDO3DWULRWLF&RPPLWWHHZDVFUHDWHGDQGZDVDOVR
the residents managed to remain in the area and create a DPRQJWKHÀUVWWRVWUXJJOHIRUWKHKRXVLQJULJKWVRI PHPEHUV
community with a management dedicated to solidarity and of the general population.
FRPPXQLW\ ZRUN 7RGD\ WKH 9LOOD (O 6DOYDGRU VKHOWHUV DS-
SUR[LPDWHO\LQKDELWDQWVDQGKDVFRPSOHWHGDVHULHV These two organisations represent a movement that spread
of works in housing, health, education, industry and com- across the misery of urban sprawl, serving as an instrument
merce. The organisation of the population, therefore, has for channelling the aspirations of a great number of women
resulted in a vast internal system of community regulation, searching for their own housing. These two entities organised
LQFOXGLQJVHOIPDQDJHGKRXVLQJFRQVWUXFWLRQ9LOOD6DOYDGRU massive invasions of state held land. This tactic provoked
was recognised as a municipal district in 1983 and in 1995 an invasion of thousands of families into land that lacked
a plan for integral development was implemented aiming at infrastructure and urban services, obligating the government
its economic and social development, which resulted in the to declare a “national emergency” with regard to the housing
establishment of more than 100 small entrepreneurs. situation in the country.
Uruguay: FUCVAM 41 7KH JRYHUQPHQW WKHQ WHVWHG YDULRXV DOWHUQDWLYHV WR ÀQG
a solution in cooperation with the popular organisations.
7KH 8UXJXD\DQ )HGHUDWLRQ RI &R2SHUDWLYH RI 6HOI Self-construction projects were initiated, whereby popular
0DQDJHPHQW )8&9$0 IRXQGHG LQ WKH V LV RQH RI committees organised the construction of houses with their
WKHPRVWLPSRUWDQWFRRSHUDWLYHH[SHULHQFHVLQ/DWLQ$PHULFD RZQDIÀOLDWHV)RXUSDUWLFXODUHYHQWVPDUNHGWKLVH[SHULHQFH
and has come to serve as a model for popular organisation in )LUVWSXEOLFSROLF\GXULQJWKLVSHULRGJDYHWKHRSSRUWXQLW\
many countries. Initially, industrial workers, service industry to certain popular organisations to become genuine housing
ZRUNHUVDQGSXEOLFHPSOR\HHV²DOOKLJKO\XQLRQLVHG²FRQ- builders. Second, the creation of the Special Commission
VWLWXWHGWKHFRRSHUDWLYHVWKDWPDGHXS)8&9$01RZKRZ- on Housing played an important role in the production of
ever, the cooperatives are mainly composed of workers in the houses for poor families. Third, the synergy developed be-
informal sector. The base cooperatives are characterised by WZHHQ1*2VDQGSRSXODURUJDQLVDWLRQVDOORZHGIRUVWURQJHU
self-management, by the use of family members as construc- DGYRFDF\HIIRUWV)RXUWKGXULQJWKLVSHULRGDODZFDOOHG¶UHDO
tion workers and by the direct administration of urban hous- HTXDOLW\IRUZRPHQ·ZDVDGRSWHGLQZKLFK$UWPDNHVWKH
LQJGHYHORSPHQWSURMHFWV7KHJURXS·VSULQFLSDODFKLHYHPHQW shared entitlement of housing and land obligatory within
was the construction of more than 14,000 homes all over the social programmes of the state. This measure permitted
FRXQWU\ZLWKWKHEHVWFRVWEHQHÀWUHODWLRQDVFRPSDUHGWRDOO women to either be the sole holders of land rights or at least
other systems for social housing construction in Uruguay. share this title with a partner, thus giving women a greater
SRVLWLRQRI HTXDOLW\ZLWKPHQ 42
CEFEMINA in Costa Rica
6 Tenure t ypes and syst ems
&RVWD 5LFD SUHVHQWV D JRRG H[DPSOH LQ WHUPV RI WKH DOOL-
DQFHV EXLOW E\ ZRPHQ·V RUJDQLVDWLRQV LQ WKHLU VWUXJJOH IRU The formal and informal urban land markets in Latin America
KRXVLQJ 7KH )HPLQLVW &HQWUH IRU ,QIRUPDWLRQ DQG $FWLRQ complement each other and, to a certain degree, overlap. The
&()(0,1$ HVWDEOLVKHG LQ RUJDQLVHG WKH SDU-
H[LVWLQJVHWWOHPHQWV 55DQGLQIRUPDOODQGKRXVLQJPDUNHWV dependants. One of the major global challenges of the new
where low-income earners can afford to purchase a plot or millennium is growing urban poverty among women. It is
house built illegally, in violation of urban regulations. The estimated that some 25 percent of all households are headed
latter category includes everything from clandestine or pirate E\ZRPHQDQGDUHORFDWHGLQXUEDQDUHDV²HVSHFLDOO\LQ/DWLQ
plots to agricultural cooperatives transformed into urban $PHULFD :RPHQKHDGHG KRXVHKROGV W\SLFDOO\ UHSUHVHQW D
land. 56 high proportion of those in informal settlements worldwide
and they are among the poorest. 58
:LWKLQ WKH FDWHJRU\ RI LQIRUPDOLW\ WKHUH DUH YDULRXV VLWXD-
tions, including: ,QDGHTXDWHKRXVLQJSRRUORFDWLRQVFDUFHDFFHVVWRSRWDEOH
v Owners with or without registered titles; water, electricity, public transportation, telecommunications,
v Possessors with written proof of purchase; health and education services all have a great impact on the
daily lives of women.
v Possessors who bought an irregular or clandestine
plot through a contract that is not valid to transfer the
property; :RPHQOLYLQJLQVOXPVJHQHUDOO\ZRUNLQWKHLQIRUPDOVHFWRU
v Land occupiers who are, or will be, converted into RI WKHHFRQRP\DQGRULQGRPHVWLFODERXUZLWKRXWDQ\MRE
owners when the time for prescription of the rights of security or social security. The number of single-head house-
the original owners have elapsed; holds is rising and many paternal responsibilities have been
v Buyers of plots or public housing by means of the abandoned, thereby increasing the child-rearing burden.
transfer of a document of proof of purchase not
recognised by the state; and $V GHVFULEHG LQ FRXQWU\ UHSRUWV RI 1LFDUDJXD 0H[LFR
v Informal owners who use front-persons to register Colombia and Brazil, women suffer a wide range of dis-
their properties. 57 crimination and injustice, supporting the view that the
feminisation of poverty is accelerating. Moreover, these
)URP WKH YLHZSRLQW RI XUEDQ LUUHJXODULW\ LQIRUPDO VHWWOH- studies demonstrate that women are more affected by hous-
ments are considered to be any occupation of land with LQJSROLFLHVXUEDQLVDWLRQDQGWKHGHFOLQHRI WKHTXDOLW\RI
inappropriate environmental-urban conditions for human living conditions. Therefore, urban planning must begin to
KRXVLQJ VXFK DV ODQG VXEMHFW WR ÁRRGLQJ ODQG WKDW LV FRQ- WDNHLQWRDFFRXQWWKHRSLQLRQVRI ZRPHQDQGWKHLUVSHFLÀF
taminated, land with poor access to public transport, and so needs, in such a way that cities develop in a manner that is
on. VXVWDLQDEOHDQGHTXLWDEOH
56 The existence of the informal market is connected to political paternalism and client
attention. Many government employees responsible for the control of urban regulations
use the informality as a bargaining chip to obtain electoral political advantages.
tional systems, and each municipality has developed its own 9 W omen’s right s t o land and
system. 59 housing in t he region
In general, land registration systems in Latin America do not Over the past 30 years most Latin American constitutions
facilitate access to the land or guarantee security of tenure KDYH FRQIHUUHG HTXDO ULJKWV WR WKHLU FLWL]HQV UHJDUGOHVV RI
for the majority of the city residents. Most of the systems are WKHLUVH[UDFHRUVRFLDOFRQGLWLRQ7KHFRQVWLWXWLRQVRI %UD]LO
based on colonial laws relating to inheritance, forms of proof, &RORPELD&XED0H[LFRDQG1LFDUDJXDIXUWKHUJXDUDQWHHIXOO
and methods of demarcation that are not suitable for the HTXDOLW\EHWZHHQPHQDQGZRPHQZLWKUHVSHFWWRLQGLYLGXDO
present-day local conditions. Moreover, despite modernisa- FLYLO DQG SROLWLFDO ULJKWV :KLOH WKH FRQVWLWXWLRQV UHFRJQLVH
tion efforts, old data collection methods are widespread. these rights, most property, family and inheritance rights are
regulated in civil codes. The majority of these civil codes
As these systems are not set up to collect, process or register have been reformed to recognise the role of both men and
transactions effected in the informal land market, they con- women as household heads, and in a majority of countries
tribute to problems rather than solutions. The result is the FRKDELWDWLRQ GH IDFWR XQLRQV DQG FLYLO GLYRUFH KDYH DOVR
H[FOXVLRQRI DVLJQLÀFDQWSDUWRI WKHSRSXODWLRQIURPHVWDE- been recognised. As a greater percentage of women became
lishing tenure rights. A review of land registration, cadastral heads of household, some countries have started modifying
and land information systems indicates that there is likely to WKHLUODZVUHJDUGLQJWKHHOHPHQWVUHTXLUHGWREHFRQVLGHUHG
be no documentary evidence of title for the majority of land a head of household. This is the case in Bolivia, Colombia,
plots in developing countries. The best estimates indicate +RQGXUDV3HUXDQG9HQH]XHOD 63
that in Latin American countries, 70 percent of land plots are
undocumented. 60 $WWKHVDPHWLPHFUHDWLRQRI QDWLRQDOZRPHQ·VPHFKDQLVPV
has been strongly encouraged to advance legislation and
Latin American countries predominantly deal with central- SROLFLHVDLPHGDWSURPRWLQJHTXDOLW\DPRQJZRPHQDQGPHQ
ised cadastres. 61 There is a movement to decentralise po- Agrarian laws and land reform programmes have lacked a
litical powers in the region, and this includes the institutions JHQGHUDSSURDFK)RUWKLVUHDVRQHIIRUWVKDYHEHHQPDGHWR
responsible for land administration. This not only has the LQFRUSRUDWHDIÀUPDWLYHDFWLRQSROLFLHVLQIDYRXURI ZRPHQ
potential to help fund municipalities through collection of with one of the greatest achievements being the elimination
SURSHUW\ WD[HV LW DOVR PDNHV WKH SODQQLQJ XSJUDGLQJ DQG of the concept of the male household head as the main ben-
supply of housing more effective and sustainable. However, HÀFLDU\ RI SXEOLF GLVWULEXWLRQ DQG UHJLVWUDWLRQ SURJUDPPHV
in some cases decentralisation may cause problems, as there 7KH DJUDULDQ ODZV RI %ROLYLD %UD]LO &RORPELD &RVWD 5LFD
are chronic shortages of capable personnel and infrastruc- *XDWHPDOD+RQGXUDVDQG1LFDUDJXDQRZH[SOLFLWO\UHFRJQLVH
ture. 62 WKHHTXDOULJKWVRI PHQDQGZRPHQ,QWKHFDVHRI 0H[LFRLQ
1971 the Agrarian Law granted women the same land rights
It is also important to note that rapid developments in infor- DVPHQDQGFRQVHTXHQWO\WKH\ZHUHJUDQWHGDYRLFHDQGYRWH
mation and communication technologies present important in domestic decision-making bodies.
new opportunities to modernise land administration systems.
Because the issue of land ownership became a priority within
59 Erba, D. (2004).
WKHIUDPHZRUNRI *XDWHPDOD·VSHDFHDFFRUGVDQHZZLQGRZ
60 Fourie, C. (2001). RI RSSRUWXQLW\KDVRSHQHGXSIRUZRPHQWRÀOHWKHLUFODLPV
61 For example, Brazil has recently restructured its National System of Rural Cadastre; for land allocation. One movement of rural and indigenous
more than half of the states in Mexico still have centralised cadastral data.
LVQRWVXIÀFLHQWWRHQVXUHWKHUHFRJQLWLRQRI ZRPHQ·VULJKWV 67 The lack of control over land is precisely what prevents women from fully using
land acquired or inherited together with men. In this respect Bina Agarwal declares that
as marital property is almost always titled in the name of the VHSDUDWHSURSHUW\WLWOHVZRXOGEHRIJUHDWHUEHQH¿WWRZRPHQWKDQKROGLQJSURSHUW\WLWOHV
jointly with their husbands. Agarwal, B. (1994).
DOO SURSHUW\ LV GLYLGHG HTXDOO\ EHWZHHQ WKH KXVEDQG owned, but in practice if the land is titled under the name
and wife. Upon the death of one spouse, the surviving
RI WKH KXVEDQG KH FDQ GLVSRVH RI LW ZLWKRXW KLV VSRXVH·V
spouse is also entitled to half of the marital property;
signature because the signature rules are rarely enforced. 71
v Partial community of property, in which individual pri-
(FXDGRU 'RPLQLFDQ 5HSXEOLF *XDWHPDOD +RQGXUDV DQG
YDWHSURSHUW\DFTXLUHGGXULQJWKHPDUULDJHLQFOXGLQJ
0H[LFRIDYRXUPDOHPDQDJHPHQWRI FRPPXQLW\SURSHUW\DV
through inheritance, donation or what is brought into
WKHXQLRQLVVHSDUDWHZKLOHSURÀWVGHULYHGIURPVXFK shown in the table below. 72
property is part of the common property. Upon sepa-
ration or divorce, each spouse is entitled to half of the 7DEOH 0DQDJHPHQW RI FRPPXQLW\ RI SURSHUW\ LQ VHOHFWHG
common property, while the separate property remains FRXQWULHV
ZLWKWKHVSRXVHWKDWKDGDFTXLUHGLWDQG Country Joint Sole Equal
v Separation of property, in which each spouse keeps Management Management Management
and administers their individual property. In the case Bolivia X
of dissolution of the marriage, each spouse keeps his Brazil X
or her individual property as well as earnings derived Chile Husband
from it. Dominican Husband, even
,QSUDFWLFHVXFKH[SOLFLWDJUHHPHQWVDUHQRWRIWHQFRQFOXGHG Republic under separate
In the absence of such a declaration, the default marital prop- property regime
erty regime that applies in most Latin American countries is Ecuador Husband unless
SDUWLDO FRPPXQLW\ RI SURSHUW\ ,Q &RVWD 5LFD (O 6DOYDGRU otherwise agreed
+RQGXUDVDQG1LFDUDJXDWKHGHIDXOWUHJLPHLVVHSDUDWLRQRI by contract
property. 69 El Salvador X Husband when
wife is a minor
5HDOHVWDWHSURSHUW\LVXVXDOO\UHJLVWHUHGXQGHUWKHKXVEDQG·V Guatemala Husband
name and, as no registry annotation is outlined, the man Honduras Husband
usually decides unilaterally to sell. This leaves women in an Mexico Husband
unprotected position, as they would have to sue the husband Nicaragua Husband with regard
in order to recover their part. The same happens with the to ‘family patrimony’1
type of property regimes adopted by the couple, when these Paraguay Husband
are not annotated in the public registry. The English Law Commission conducted a survey of the
community of property management systems in different
:LWKWKHLQFUHDVLQJUHFRJQLWLRQRI GHIDFWRXQLRQVLQWKHUH- jurisdictions. The commission found that community of
gion, the marital property regime is also slowly being applied SURSHUW\FRXQWULHVZHUHPRYLQJWRZDUGVPRUHRI DQHTXDO
to such unions. 70 management system, and concluded that systems that do not
SHUPLW HTXDO PDQDJHPHQW GXULQJ PDUULDJH DUH ´XQDFFHSWD-
The concept of “marital authority” was at one time written ble” 73 and in violation of the Convention on the Elimination
into most civil codes. Although this is no longer true for RI $OO'LVFULPLQDWLRQ$JDLQVW:RPHQ&('$:,QDGGLWLRQ
the majority, it is still a strong customary norm. In Ecuador, FLYLOFRGHVDQGIDPLO\ODZVWKDWVWLOODOORZIRUXQHTXDOPDULWDO
XQGHUWKHIRUPDOODZDQ\SURSHUW\DFTXLUHGE\DFRXSOHDX-
71 Deere, C. et al (2001).
tomatically forms part of the marital property and is jointly
72 Ibid; civil code of the Dominican Republic, Art. 1421, 1428; Family Code of Honduras,
69 UN-HABITAT. ( 2005:26). $UW)DPLO\/DZLQ0H[LFDQ6WDWHVRI$JXDV&DOLHQWHV2D[DFDDQG6RQRUDFLYLOFRGH
of Ecuador; civil code of Guatemala.
70 This recognition started with the Cuban Family Code, followed by the Brazilian and
Nicaraguan Constitutions. 2OGKDP-7
property management also violate other international human The marital regime also affects the inheritance rules, as
rights instruments and may be contrary to the constitutions shown in the table below:
of these countries. 74
7DEOH5XOHVFRQFHUQLQJHVWDWHLQKHULWDQFHDFFRUGLQJWRPDULWDO
%R[&KDOOHQJLQJVROHPDQDJHPHQWRI PDULWDOSURSHUW\ regime
Article 131 of the civil code of Guatemala empowers the husband to Country Part of will that Intestate Order
administer marital property. María Eugenia Morales de Sierra from may be inherited of preference
Guatemala challenged this provision, as it creates distinctions between Bolivia 1/5 if there are surviving 1: children, spouse
men and women that are discriminatory. The case appeared before the children or spouses and parents
Inter-American Commission on Human Rights, which decided on the case Brazil ½ if there are surviving 1: children, spouse (1/4)
on January 19 2001. The commission resolved that the government of children or spouses 2: spouse and parents if
Guatemala had violated Art. 24 of the American Convention on Human no surviving children
Rights (equal protection of the law). It stated that once the civil code Chile ¼ if there are surviving 1: children, spouse’s share
restricts women’s legal capacity, their access to resources, their ability to children, and spouse’s share 2: spouse (¼) and parents if
enter into certain kinds of contract (relating, for example, to property held no surviving children
jointly with their husband), to administer such property and to invoke Colombia ¼ if there are surviving 1: children, spouse’s share
administrative or judicial recourse is compromised.2 children, and spouse’s share 2: spouse (1/4) and parents
if no surviving children
Costa Rica The entire estate 1: children, parents,
and spouse’s share
9.2 Inheritance rights Ecuador ¼ if there are surviving 1: children, spouse’s share
children and parents, 2: spouse and parents if
Issues related to succession and inheritance are regulated and spouse’s share no surviving children
through the civil codes of most Latin American countries, El Salvador The entire estate 1: children, spouse
ZLWK WKH H[FHSWLRQ RI &RVWD 5LFD DQG &XED ZKHUH WKHVH and parents
have been laid down in family codes. Guatemala The entire estate 1: children, spouse’s share
2: spouse and parents if
In most other countries, the law provides for complete no surviving children
Honduras ¾, and spouse’s share 1: children, spouse’s share
testamentary freedom, which leaves the surviving spouse de-
2: spouse and parents if
fenceless in a marriage with a separation of property regime.
no surviving children
In cases of community of property, upon the death of one Mexico The entire estate 1: children, spouse’s share
spouse, the surviving spouse is entitled to a portion unless a 2: spouse and parents if
family patrimony or estate is declared and there are minors. no surviving children
6XUYLYLQJSDUWQHUVIURPGHIDFWRXQLRQVDUHH[FOXGHGXQOHVV Nicaragua ¾, and spouse’s share 1: children, spouse’s share
their partner left a will. In some countries, such as Costa 2: spouse (¼) and parents
5LFD+RQGXUDV0H[LFR3DQDPDDQG8UXJXD\WHVWDPHQWDU\ if no surviving children
freedom is somewhat restricted in order to ensure subsist- Peru 1/3 if there are surviving 1: children, spouse
children or spouses and parents
ence portions to disabled dependants, minors, elders or the 6RXUFH'HHUH&DQG/HyQ0*pQHUR
VXUYLYLQJ VSRXVH ,Q 1LFDUDJXD WKH QHHG IRU VXEVLVWHQFH
must be proved.
74 For example, the International Covenant on Civil and Political Rights (Art. 3)
requires state parties to ensure the equal right of men and women to enjoy all rights
laid down in this Covenant. Art. 23(4) requires state parties to take appropriate steps to
ensure equality of rights and responsibilities of spouses as to marriage, during marriage
and upon the dissolution of marriage. 154 states are parties to this Covenant.
In the case of de facto unions, inheritance rights are usually VSRXVH FRQFXUV ZLWK DQ\ DQFHVWRUV VKH LV RQO\ HQWLWOHG WR
recognised by the legislation under the general condition that KDOI RI WKH DVVHWV :RPHQ UDUHO\ LQKHULW IURP WKHLU IDWKHU
there is no previous marriage. If there is a previous marriage H[FHSWLI WKHUHDUHQRPDOHKHLUVRULI DQH[SDQVHRI ODQGLV
of any of the de facto union members, the partners of both very large.
XQLRQV PXVW VKDUH WKH LQKHULWDQFH ULJKW 1RW DOO FRXQWULHV
recognise de facto unions. In Brazil inheritance practices have favoured mostly men,
both for cultural reasons and because many women have
Lands that have been obtained through adjudication, for been forced to migrate in search of new work opportuni-
H[DPSOHWKURXJKVWDWHGLVWULEXWLRQSURJUDPPHVDVDSURGXFW WLHV +RZHYHU LW VKRXOG EH QRWHG WKDW DV LQ 0H[LFR ODQG
of agrarian laws, may also suffer differences regarding the distribution and inheritance are becoming more egalitarian as
inheritance system. In general the rule is that this type of agriculture becomes less dominant.
ODQG LV DGMXGLFDWHG XQGHU FHUWDLQ PDUNHW UHVWULFWLRQV )RU
H[DPSOHLWLVDGMXGLFDWHGZLWKRXWDSURSHUW\WLWOH7KLVPHDQV 9.3 Affirmative action
WKHEHQHÀFLDULHVFDQQRWVHOOFHGHRUWUDQVIHUEHIRUHDFHUWDLQ
time, which usually ranges from 10-15 years. If death occurs 7KHJHQHUDOUXOHLQGHIDFWRXQLRQVLVWKDWWKHSDUWQHU²ZRPDQ
during this period this type of land will then be re-adjudicated RUPDQ²FDQRQO\EHFRPHDQLQWHVWDWHKHLUDQGDWWDLQWKDW
between the inheritors. If death occurs after this period the limited status in the countries where this type of union is
property title had already been granted. legally recognised. De facto unions are especially recognised
in terms of state policies on land and housing.
If this type of adjudication is regulated by the civil code, the
parcel will be subdivided upon death. This system is followed 6RPH FRXQWULHV KDYH LPSOHPHQWHG TXRWDV WR LQFUHDVH WKH
E\%ROLYLD&RVWD5LFD&KLOH(FXDGRU(O6DOYDGRU3DQDPD SURSRUWLRQ RI ZRPHQ KROGLQJ HOHFWHG RIÀFH &RVWD 5LFD
and Paraguay. 75 If land adjudication is regulated by the agrar- +RQGXUDVDQG3DQDPDKDYHTXRWDVUDQJLQJIURPSHU-
ian law, the parcel is not subdivided upon death. 76 This is the FHQW,Q0H[LFRWKHPLQLPXPTXRWDLVSHUFHQW$UJHQWLQD
VLWXDWLRQLQ&RORPELD&XED+RQGXUDVDQG1LFDUDJXD7KH 30 percent; Brazil, 25 percent; Bolivia, 30 percent; Ecuador,
Colombian Constitution recognises the de facto union and 20 percent; and Peru 25 percent. These numbers are however
the agrarian reform law recognises the right of inheritance \HWWREHDFKLHYHGVHH7DEOH:RPHQ·VUHSUHVHQWDWLRQLQ
of the surviving spouse or companion. QDWLRQDOOHJLVODWXUHVLQ/DWLQ$PHULFD
,Q%UD]LO0H[LFRDQG&KLOHLQKHULWDQFHPRVWO\IDYRXUVPHQ
0H[LFR LV FKDUDFWHULVHG E\ DEVROXWH WHVWDPHQWDU\ IUHHGRP
while in Chile and Brazil the civil codes clearly provide for
HTXDO VXFFHVVLRQ ULJKWV IRU PDOH DQG IHPDOH FKLOGUHQ ,Q
WKHFDVHRI 0H[LFRZLWKUHJDUGWRWKHULJKWRI LQKHULWDQFH
Art. 1602 of the civil code provides for legitimate succes-
sion, which includes spouses as well as both female and male
concubines. Their rights depend on the concurrence of other
UHODWLYHVDQGWKHLUFORVHQHVVWRWKHHVWDWH·VRULJLQDOEHTXHDWKHU
DQGZKHWKHUVKHKDVDQ\DVVHWVRUQRW,QDGGLWLRQLI WKH
75 Ibíd.
76 )$2
7DEOH,QKHULWDQFHULJKWVRI DGMXGLFDWHGODQGDFFRUGLQJWRFLYLODQGDJUDULDQODZV
Country Civil Law Agrarian Law
Testamentary Succession Intestate Succession Succession of plots allocated by
Law
Bolivia No absolute testamentary freedom. The spouse is The spouse becomes a legitimate successor if Governed by rules of the civil code.
the apparent heir if s/he has any children. s/he has any children.
Brazil No absolute testamentary freedom. The spouse’s The spouse is a legitimate successor. Governed by rules of the civil code.
share must be considered.
Colombia No absolute testamentary freedom. The spouse’s The spouse becomes a legitimate successor Governed by agrarian rules.
share must be considered. with spouse’s share, which is an alimony Spouses and companions are able to inherit.
whose need must be proved.
Costa Rica Absolute testamentary freedom. The spouse becomes a legitimate successor. Governed by the rules of the civil code.
Honduras There is absolute testamentary freedom. The spouse becomes a legitimate successor, Governed by Agrarian Law.
but s/he must prove the need for it.
Mexico There is testamentary freedom, except for alimony The spouse becomes a legitimate successor. Governed by Agrarian Law.
obligations.
Nicaragua No testamentary freedom. Spouse must be The spouse becomes a legitimate successor. Governed by Agrarian Law.
considered.
Panama Absolute testamentary freedom. Spouse’s share The spouse becomes a legitimate successor. Governed by Agrarian Law.
must be considered.
Paraguay No absolute testamentary freedom. Spouse must The spouse becomes a legitimate successor. Governed by the civil code.
be considered.
Peru No absolute testamentary freedom. Spouse must The spouse becomes a legitimate successor. Governed by Agrarian Law.
be considered.
Dominican Republic No absolute testamentary freedom. Spouse must The spouse becomes a legitimate successor. Governed by Agrarian Law.
be considered.
Uruguay Testamentary freedom with the limitation of The spouse’s share must necessarily be Governed by the rules of the civil code.
the spouse’s share (as necessary for a congrua allocated.
subsistencia)**
Venezuela No absolute testamentary freedom. Spouse The spouse becomes a legitimate succes- Governed by Agrarian Law.
must be considered. sor.
6RXUFH)$2
**The term FRQJUXDVXEVLVWHQFLDLVXQGHUVWRRGDVWKHDPRXQWRI PRQH\WKDWHQDEOHVWKHEHQHÀFLDU\RI WKHDOLPRQ\WRPRGHVWO\
survive in a way corresponding to their social status.
Urban violence against women occurs in the public and In recent years, black communities in Latin America have
domestic domain and has been linked closely with issues of presented demands and employed strategies to establish their
housing and urban development. 779LROHQWFODVKHVEHWZHHQ “indigenous identity”. 82 As a result some progressive legal
different urban groups in the public domain have often reforms have been introduced. 83 In many cases Afro-Latin
played out in terms of attacks on women and restrict their American communities have built on the solid achievements
access to public space and life. The possibility of women of indigenous communities for their own rights.
achieving security of tenure can enable them to avoid situ-
ations of violence. 787KXVWKHUHH[LVWVDGLUHFWUHODWLRQVKLS :KLOHLQGLJHQRXVDQGEODFNFRPPXQLWLHVKDYHEHHQFODLPLQJ
between violence against women and the necessity to have collective rights over land and housing, indigenous women
DGHTXDWHKRXVLQJ 79 have been trying to guarantee their individual rights to own
land. 84 The right to individual title, so strongly defended
)XUWKHUPRUH YDULRXV IDFWRUV FDQ IXHO D VSLUDO RI YLROHQFH E\ WKH ODZV DQG WKH FRXUWV RIWHQ WR WKH GHWULPHQW RI WKH
DJDLQVWZRPHQDVYLROHQFHDQGIHDUWKUHDWHQWKHTXDOLW\RI UHFRJQLWLRQRI FROOHFWLYHULJKWVVHHPVWREHXQDWWDLQDEOHIRU
life in society, good governance, sustainable development women, although it is in the natural order of things in the real
DQGWKHVRFLDODQGSROLWLFDOOLIHRI FLWLHV:RPHQHVSHFLDOO\ estate market. 85:RPHQ·VULJKWVWRVHFXULW\RI WHQXUHDQGWR
are affected by violence, often in the form of physical and land titles in their own names are intrinsically connected to
VH[XDODEXVHDVZHOODVKDUDVVPHQWIUHTXHQWO\LQWKHLURZQ WKHLUULJKWWRH[HUFLVHWKHLULQGLYLGXDOOLEHUWLHV
homes. The increase in crime is associated with growing of
GUXJ WUDIÀFNLQJ DQG WKH JOREDOLVDWLRQ RI RUJDQLVHG FULPH 11 Land and Housing Policies
VSUHDGLQJWRÀQDQFLDODQGKRXVLQJVSHFXODWLRQ 80
11.1 National housing policies
:RPHQZRUNLQJDQGOLYLQJLQFLWLHVDUHIDFHGZLWKWKHGDLO\
FKDOOHQJHRI SHUVRQDOVHFXULW\:LWKRXWDGRXEWVHFXULW\LQ The housing crisis in Latin America has various dimensions.
WKHVH XUEDQ FHQWUHV ZLOO UHTXLUH FKDQJHV LQ ULJLG KLVWRULFDO ,I SXEOLFSROLFLHVDUHWREHHIÀFLHQWWKH\VKRXOGEHGUDZQ
structures, led by political decisions and institutional prac- up bearing in mind not only the lack of housing but also the
WLFHV WKDW DWWHPSW WR GHYHORS WKH QHZ FRQFHSW RI FLWL]HQV· need for improvement of housing, including hygienic and
security. This is not possible without organised citizenship environmental conditions.
participation, especially of women.
82 Wade, P. (1997). This tendency can be seen in Colombia (Palenques), Brazil
(Quilombos), Nicaragua (Creoles), Honduras (Garífunas), Belize and Ecuador. As an
example there is the black activist movement that surfaced in Honduras in 1980, who
According to the Inter-American Development Bank, crime LGHQWL¿HGWKHPVHOYHVE\WKHWHUPV³LQGLJHQRXVDQG*DUtIXQDVSHRSOHVRIDXWRQRPRXV
is growing in Latin America. 81 El Salvador and Colombia HWKQLFLW\´DVDPHDQVRIJDLQLQJUHFRJQLWLRQRIWKHLUULJKWVDVSHRSOHV
83 Towards the end of the 1990s, the World Bank and the Inter-American Development
KDYHWKHKLJKHVWGHOLQTXHQF\OHYHOV Bank started to support initiatives regarding the land rights of afro-descents in Latin
America. Moreover, the World Bank set up projects connecting indigenous question with
those of afro-descents in Colombia, Ecuador and Peru. Davis, S. (2002).
84 The Report no. 4/01, case 11.625 (2001) from the Inter-American Commission on
Human Rights is an example of a judicial claiming aiming the recognition of ownership
rights of Guatemalan women. www.cidh.org/annualrep/2000eng/ChapterIII/Merits/
77 Vadera (1997), quoted by Trujillo, C. (2003).
Guatemala11.625.htm
78 Fundación Arias.
85 Deere, C. et al (2002:315). This reality is attributed to the ideology of the family,
79 Trujillo, C. (2003). which is based on the notion of a male head of the family whose actions are always for
WKHGHIHQFHRIWKHIDPLO\DQGQHYHULQKLVRZQSHUVRQDOLQWHUHVWZKLFKMXVWL¿HVWKDWLI
80 UNCHS (2001:48).
he has individual title, the land would belong to the family. The woman, on the contrary,
81 Ibid. when she has the land, the title of possession is individualised.
As general rule, Latin American countries approach the lack An integral, comprehensive approach to land and housing
RI KRXVLQJZLWKÀQDQFLQJSURJUDPPHVPDLQO\RSHUDWHGE\ rights is necessary to marshal the attributes and assets associ-
SULYDWH LQVWLWXWLRQV 7R LPSURYH WKH TXDOLW\ RI KRXVLQJ DW- ated with the land sector as a key source for the improvement
tempts are made to develop policies of title regularisation of the lives of the low-income population. Treating land
capable of satisfying the demands of those living in informal simultaneously as a human rights concern and a development
settlements, and of those living in regularised settlements concern will be a fruitful way to implement public policies
where infrastructure is still lacking. A recent study by the with a rights-based approach to development.
Inter-American Development Bank points out that the provi-
sion of social housing by the public authorities has been inef- 11.2 Subsidies and access to credit
ÀFLHQW7KLVLVODUJHO\GXHWRLQDGHTXDWHLQYHVWPHQWRI SXEOLF
UHVRXUFHVLQKRXVLQJDQGEDVLFLQIUDVWUXFWXUHODFNRI TXDOLW\ )RUPDOÀQDQFLDOLQVWLWXWLRQVKDYHQRWEHHQWKHPDLQVRXUFH
in public housing production; the implementation of con- of credit for the poor, even less so for poor women. Generally,
struction programmes separate from public policies targeting women turn to informal sources such as credit from friends,
the democratisation of access to land; and the absence of the family, direct cash loans, or payments in kind for credit
private sector in social housing production programmes. purchases. Another informal channel is the participation
RI ZRPHQ LQ VDYLQJV DQG FUHGLW RUJDQLVDWLRQV :LWKLQ WKLV
+RXVLQJSROLFLHVKDYHXQGHUJRQHPRGLÀFDWLRQRYHUWKHSDVW category the following can be found: 87
40 years. Present plans for public housing are being revised v 5RWDWLQJVDYLQJVDQGFUHGLWDVVRFLDWLRQV7KHVHDUHLQ-
because the most recent public and social policies for urban formal associations of rotating savings and credit, in
areas are not centred only on the construction of the hous- which members meet regularly to contribute a pre-
ing, but seek integrated solutions for multiple problems. determined amount of money. The total sum of the
6XFFHVVIXO H[SHULPHQWV LQ &KLOH &RVWD 5LFD (FXDGRU DQG savings is then loaned to one member, and once this
1LFDUDJXDGHPRQVWUDWHKRZHIIHFWLYHJRYHUQPHQWVFDQEHDV debt is repaid, this process can be accessed by another
member of the organisation. This is one of the main
mediators and facilitators of access to housing by the low-
PHWKRGVRI LQIRUPDOÀQDQFLQJIRXQGLQUXUDO&HQWUDO
income sector.
America;
v Solidarity groups. These are groups of three to 10
Because the major concern of the Latin American states was
people, based on the system of the Graneen Bank of
WRVROYHWKHQXPHULFDOKRXVLQJGHÀFLWPXFKOHJLVODWLRQKDV Bangladesh and Banco Sol of Bolivia, who jointly ac-
EHHQSURGXFHGUHIHUULQJDOPRVWH[FOXVLYHO\WRÀQDQFLQJDQG cess credit and technical cooperation;
subsidies for the construction of new housing. Although the
v Community banks: A society of 20-50 neighbours that
Inter-American Development Bank is presently supporting obtains a loan and maintains a savings rate;
governments in their new role of “mediators” by promot-
v 5XUDOEDQNV,QIRUPDOJURXSVRI QHLJKERXUVLQWHUHVWHG
LQJ GLUHFW VXEVLGLHV WR WKH SRRU WKH ÀQDQFLQJ VWUDWHJ\ KDV LQDFFHVVLQJÀQDQFLDOGRQRUV7KHFDSLWDOFRPHVIURP
been the least successful in the region in view of the real stocks, savings, donations and utilities; and
GLIÀFXOW\ RI WKH ORZ LQFRPH SRSXODWLRQ WR PHHW WKH FUHGLW
v Savings and credit cooperatives: The resources primar-
UHTXLUHPHQWVHLWKHUSXEOLFRUSULYDWH 86 LO\FRPHIURPWKHVDYLQJVRI WKHDVVRFLDWHVZKRGHÀQH
their own policies.
86 In Uruguay, an attempt was made to solve the problem of restricted credit by means
RIWKH1DWLRQDO+RXVLQJ3ODQ2QWKHEDVLVRIWKLVSODQWKHJRYHUQPHQWGUHZXSD
GRFXPHQWHYHU\¿YH\HDUVDERXWWKHKRXVLQJVLWXDWLRQFRQVLGHULQJWKHH[LVWLQJGHPDQG
for housing projects, the population’s income, the loans and subsidies to be conceded,
characteristics of the family group and gives preference to vulnerable groups, such as, for
the plans for construction of public housing and legislation considered necessary for
example, big families, the old, or women head of households.
carrying out the plan. In Chile, since 1978, a system of subsidies for the poor has been
in operation. The system is based on an analysis that takes into consideration various 87 Karremans, J et al. (2003).
These savings and credit schemes offer certain advantages to nearby informal settlements, the supply companies will not
ZRPHQ·VDVVRFLDWLRQVLQFOXGLQJVWUHQJWKHQLQJWKHORFDOPDQ- connect the services if the land or building is not titled. 91
agement capabilities of women. However, the schemes have
limited operating capital, a low level of security and remain 7DEOH5HJXODULVDWLRQSURJUDPPHVE\W\SHDQGFRXQWU\
RXWVLGHWKHIRUPDOÀQDQFLDOV\VWHP Country I n i t i a l Year Regul Physical Both
year com- arisa- regulari-
An important case study that demonstrates a model of pleted tion of sation
women obtaining access to credit is described in the report land
title
RQ 1LFDUDJXD ² WKH H[SHULHQFH RI WKH :RPHQ·V &HQWUH RI
Argentina 1980 1990 X X X
;RFKLOW$FDOW 88 Another model, 0RGHOR 7DQGD 3UpVWDPR is
Bolivia 1961 1982
GLVFXVVHGLQWKH0H[LFRUHSRUW Brazil 1983 1988/90 X X X
Colombia 1972 1996 X
11.3 Regularisation policies Costa Rica 2003 X X X
Chile 1970 1995 X X X
7KHOHJDOLVDWLRQRI H[LVWLQJVHWWOHPHQWVDVDPHDQVRI JXDU- Ecuador 1989 2001 X
El Salvador 1991 1999 X
DQWHHLQJDFFHVVWREDVLFVHUYLFHVZDWHUVDQLWDWLRQHOHFWULFLW\ Guatemala 2001 X
KDVLPSURYHGWKHTXDOLW\RI OLIHWRVRPHH[WHQWDOWKRXJKWKLV Honduras 1998 2003 X
regularisation is not widely applied in terms of national poli- Mexico 1971 1992 X X
cies. Traditionally, three distinct types of land regularisation Nicaragua 1998 1999 X X X
FDQEHLGHQWLÀHG 89 regularisation of the land title; physical Panama 1994 X
Peru 1961 1996 X
UHJXODULVDWLRQ XUEDQLVDWLRQ DQG LQIUDVWUXFWXUH SURYLVLRQ
Uruguay 1984 1995 X X X
and both together. Venezuela 1968 2002 X X
Source: &OLFKHYVN\1
3ULFHVLQWKHLUUHJXODUODQGDQGKRXVLQJPDUNHWVUHÁHFWWKH However, regularisation of title is only a means to the end of
drastic decrease in public development of urban land for complete regularisation, because in the majority of instances
housing purposes, especially as the formal private sector can SURRI RI WKH H[LVWHQFH RI WKH IXOO ULJKWV RZQHUVKLS RU
only meet a small part of the demand. 90 SRVVHVVLRQLVUHTXLUHGWRLQLWLDWHWKHSURFHVVRI VHWWOHPHQW
upgrading and the provision of basic services.
The regularisation of land title is the most widely used
PHWKRG RI UHJXODULVDWLRQ VHH WDEOH EHORZ DV LW FRVWV WKH 7HQXUHUHJXODULVDWLRQSURJUDPPHVEHQHÀWDUDQJHRI VWDNH-
VWDWHOHVV$OWKRXJKQRWVXIÀFLHQWRQLWVRZQLWVKRXOGQRWEH holders and produce the following results:
underestimated: this method provides residents of informal v 7KH\SURWHFWEHQHÀFLDULHVIURPWKHGLVFUHWLRQDU\SRZ-
settlements with a legal title that they can use as a guarantee er of landowners and government administrations to
to obtain credit and improve their homes. Legal title can also promote forced evictions;
facilitate the connection of public services such as water, v They allow for social control over land reform;
electricity and sanitation, because even if these service pass v They are a basis for improvement of government rev-
HQXHWKURXJKODQGWD[DWLRQDQG
The growing privatisation of the provision of basic services in Latin America has increased
88 Arenas, C et al (2004:45-46). 91
WKHGLI¿FXOW\WKDWUHVLGHQWVRILQIRUPDOVHWWOHPHQWVIDFHLQJHWWLQJWKHVXSSOLHVFRQQHFWHGEHFDXVH
Clichevsky, N. (2003:31).
89 the private companies who now provide the services under concession from the public authority fear
Durand-Lasserve, A. (1997). WKH\PD\QRWJHWEDFNWKHFRQQHFWLRQLQYHVWPHQWRUWKDWWKHLUSUR¿WVZLOOEHOHVVVHFXUH
90
v They provide an incentive for future investments to After regularisation, payment for land ownership or usufruct
improve land and housing. LV XVXDOO\ UHTXLUHG EXW DW D UHDVRQDEOH SULFH WR JXDUDQWHH
However, tenure regularisation can be detrimental to some KRXVLQJODQGDIIRUGDELOLW\IRUWKHEHQHÀFLDULHV 94
EHQHÀFLDULHV ZKR KDYH WKH PRVW YXOQHUDEOH OHJDO RU VRFLDO
VWDWXVOLNHWHQDQWVRUVXEWHQDQWVRQVTXDWWHUODQGQHZRFFX- Programmes of physical regularisation or slum upgrading
pants who are not entitled to access land regularisation public KDYHQRWEHHQLPSOHPHQWHGDVIUHTXHQWO\DVOHJDOUHJXODULVD-
programmes, and so on. tion, principally because of the cost and disruption involved
for the state and the general population. 95 In many of these
The form of tenure regularisation varies in accordance with programmes, legalisation of informal settlements is one of the
the nature of the land that is occupied, whether it is publicly REMHFWLYHVRULVUHTXLUHGEHIRUHWKHZRUNFDQFRPPHQFH)RU
RU SULYDWHO\ RZQHG :KHQ WKH ODQG LV SULYDWHO\ RZQHG WKH the success of physical regularisation, popular participation
VWDWHFDQXVHWKHOHJDOLQVWUXPHQWRI H[SURSULDWLRQDFFRUGLQJ LVHVVHQWLDO$OWKRXJKWKDWSDUWLFLSDWLRQLVDUHTXLUHPHQWLQD
to the legal dispositions prevailing in the country or open number of projects of physical regularisation in many coun-
direct negotiations with the owner. If the land is public prop- WULHVRI WKHUHJLRQVXFKDV(FXDGRU&RVWD5LFD9HQH]XHOD
erty, under the laws regulating the public service the state can %UD]LO3HUX(O6DOYDGRUDQG0H[LFRLQSUDFWLFHLWKDVWXUQHG
alienate the building. This consists of an act by which the out to be merely an intention of the public authorities.
state makes the property, hitherto not negotiable, available or
subject to regulation, and then transfers it to the occupiers. :LWKRXWWKHH[LVWHQFHRI VRPHUHDVRQDEOHXUEDQLVDWLRQSODQ
and an improvement of living conditions in the informal set-
)RU WKH UHJXODULVDWLRQ RI ODQG WLWOH RFFXSDQWV RI LQIRUPDO WOHPHQWVLWLVGLIÀFXOWWRDFKLHYHODQGWLWOLQJ%RWKLQWHUYHQ-
VHWWOHPHQWVPXVWPHHWFHUWDLQPLQLPXPUHTXLUHPHQWVZKLFK tions are of fundamental importance to pursue the integral
YDU\E\FRXQWU\$FFRUGLQJWR1RUD &OLFKHYVN\ 92 the occu- IXOÀOPHQWRI WKHKRXVLQJWRODQGWRKRXVLQJDQGWRWKHFLW\
pants must generally prove that they: for the low-income population. This leads to the necessity of
v Do not own any other property in the country; implementation of integrated urban policies.
v Are heads of household, and in this respect, priority is
given to women as far as possible; 93 11.4 Self-helping innovative housing schemes
v Are not in debt to the state; to benefit women
v Have a minimum income capable of paying, at least in
SDUW WKH H[SHQVHV RI WKH UHJXODULVDWLRQ D FRQGLWLRQ In general, self-construction and mutual aid operates in the
QRWDSSOLHGLQFDVHVRI H[WUHPHO\SRYHUW\DQG shantytowns and informal urban settlements. This system is
of enormous help to poor women in particular. However, it
v Are citizens, because legalisation of land to foreigners
is not permitted. is not a panacea:
v ,WUHTXLUHVVROLGDULW\IURPWKHFRPPXQLW\DQG
neighbours, which cannot be guaranteed;
v ,WUHTXLUHVIUHHWLPHIURPWKHIDPLOLHVZKLFK
in general have to work over weekends; and
92 Clichevsky, N. (2003:23).
94 Clichevsky, N. (2002:55).
93 However, in some countries, such as Honduras, where there is a legal understanding
that the male is responsible for the family, this requirement is a serious factor in gender ³3K\VLFDO LQWHUYHQWLRQ EULQJV DGGLWLRQDO FRVWV DVVRFLDWHG ZLWK LQVWDOODWLRQ DQG
discrimination. According to a country report submitted by the government to the United consumption of services. It may also introduce taxes and higher tax contributions. In
National Committee on Economic, Social and Cultural Rights on 23/07/98, with reference order to meet such costs, families may be obliged to make savings elsewhere or engage
WRWKHIXO¿OPHQWRIREOLJDWLRQDVVXPHGLQWKH,QWHUQDWLRQDO&RYHQDQWRQ(FRQRPLF6RFLDO in rent-seeking behaviours such as renting or sharing lots or be forced to sell and move
and Cultural Rights. http://www.unhchr.ch/html/menu2/6/cescr/cescrs.htm RXW´:DUG3
v ,W GRHV QRW DVVXUH JRRG TXDOLW\ KRXVLQJ EH- role to play in providing funds for such programmes.
cause the projects are neither supervised nor Recognise and reinforce the role of small and mi-
LPSOHPHQWHGE\TXDOLÀHGZRUNHUV cro credit institutions among the poor. The lack of
DFFHVVLEOHÀQDQFLQJIRUWKHSRRUKDVRIWHQOHIWWKHP
1 2 R e g i o nal re c o mmen d a tio ns out in housing programmes. Positively however has
been the development across the region of micro
a n d p rio ritie s credit institutions whose membership is often largely
composed of women. There is a need to better target
Although there are detailed recommendations in all the re- these initiatives through increased support to better ca-
spective country chapters, a number of overarching themes pacitate, capitalise and formally recognise them.
that cut across the region can be captured. Recognise the special needs of indigenous and
Government should take on a more proactive role minority communities. :KLOHWKHUHLVJHQHUDOUHFRJ-
in land matters. $ÀUPHUUROHLVQHHGHGRI JRYHUQ- nition and consensus on this ideal, there is a need to
ment to reduce the intense speculation in urban land, better integrate these communities in all land reform
ZKLFK OHDGV WR H[FOXVLRQ RI WKH SRRU )XUWKHU LQ- and housing programmes.
creased efforts need to be made to address the glaring Incorporate civil society into the highest levels of
ODQGRZQHUVKLSLQHTXDOLWLHVLQWKHUHJLRQ7KHVHLVVXHV decision-making. The often active and vibrant civil
lie at the core of providing housing, land and tenure society in the region needs to be fully integrated into
security to the estimated 180 million people living in governmental decision organs at all levels. This will
poverty in the region. HQVXUH WKH\ FDQ EHWWHU LQÁXHQFH SROLF\ DQG GHFLVLRQ
There is a region wide need to implement non- making.
discriminatory laws and policies. :KLOH WKHUH DUH Further pursue pioneering concepts in land ten-
DVSHFWV RI JHQGHU HTXDOLW\ LQ WKH ODZV RI WKH UHJLRQ ure and reform and enhance shared learning. The
the actual practice has often been lacking. The reform region is considered to be the home of what many
of institutions to include broader gender representiv- regard as positive practices in land tenure and reform,
ity, attitudinal changes as well as education campaigns and provides an important source of learning for the
are important ingredients in implementation of these rest of the developed world. There is a need to more
laws. International treaties and conventions with their urgently implement many of these practices on a wider
reporting and monitoring procedures can additionally VFDOHDVZHOODVVKDUHH[SHULHQFHVZLWKLQWKHUHJLRQ
be useful tools for feedback on implementation.
Integrate the poor living in informal settlements
,QFUHDVHHIIRUWVLQIXOÀOOLQJWKHULJKWWRDGHTXDWH into the urban fabric. $PL[WXUHRI FRORQLDOOHJDF\
housing. The general regional acceptance of a legal and post independent land practices has seen the pe-
right to housing in various forms should be coupled ripheralisation of the urban poor across the region.
ZLWKVFDOHGXSSURJUDPVIRUH[SDQGLQJVHUYLFHSURYL- :KLOHWKHUHLVQRVLQJOHVROXWLRQWRWKLVSKHQRPHQRQ
sion through informal settlement upgrading, granting
tenure security and new housing development. Donors
and multilateral lending agencies have an important
urban planning, land reform and housing programmes the systems through broader use of technology; and
should have integration as a priority. Informal settle- increase decentralisation and capacitation of regional
ment regularisation that provides infrastructure and and local units.
services at scale is key. Again the importance of shared Improve access to information and legal support
OHDUQLQJDPRQJWKHFRXQWU\·VLVLPSRUWDQWZLWKPDQ\ on land and housing rights. A common feature in
already featuring such priorities in their policies and the region is the need to better implement good laws
programmes. and policies. The public should be better educated on
Reform of land registration systems across the the contents of these laws and legal support provided
region. This is a broad area of reform and emphasis to prevent violations. Civil society is important in this
will depend on the country concerned. However, there process.
is a general need to incorporate the poor into these
systems through reconciling the formal and informal
V\VWHPVRI ODQGDFTXLVLWLRQ,QDGGLWLRQWKHUHLVQHHG
to reform old and outdated colonial laws; modernise
,Q WKLV UHSRUW H[DPLQDWLRQ RI ODQG WHQXUH KDV EHHQ FRQ- $VHFWLRQLVWKHQGHGLFDWHGWRH[DPLQLQJWKHFRXQWU\·VSRYHUW\
sidered broad enough to cover matters regarding housing, reduction strategies, national development plans or similar
marital property issues, inheritance, poverty reduction and initiatives and their relationship to the primary themes of
local government. An additional important aspect of the the report.
study is its focus on gender and its relationship to each of
these issues. The section on land management systems maps the institu-
tions involved in land management and administration, and
Structure KRZ IDU WKHLU IXQFWLRQV ÀOWHU GRZQ WR WKH ORFDO OHYHO 7KLV
section also analyses the relationship this formal bureaucracy
The report is structured to capture the wide-ranging topics has with informal settlements and their dwellers. The section
mentioned above. Every effort has been made to stick to concludes with a selection of court decisions on land and
standard headings in all four reports, but obviously there has housing rights cases.
been some variation to accommodate issues needing special
emphasis in particular countries. Local and, where appropriate, state laws and policies are then
scrutinised to determine how they address land and housing
7KHÀUVWSDUWRI WKHUHSRUWVHWVWKHVFHQHIRUWKHVWXG\SUR- rights, as well as their relationship with national laws.
viding a brief historical background, followed by a snapshot
of how the governments and legal systems of the country ,PSOHPHQWDWLRQRI ODQGDQGKRXVLQJULJKWVLVWKHQH[WWRSLF
function in relation to the subject matter. There is a discus- of discussion. It addresses how successful the actual delivery
sion of the socioeconomic conditions. The section concludes of these rights has been.
7KHÀQDOVHFWLRQVGUDZRQLQIRUPDWLRQSURYLGHGLQWKHSUHYLRXVSDUWVRI WKHUHSRUW7KHEHVWSUDFWLFHVVHFWLRQWULHVWRLGHQWLI\
DQ\SRVLWLYHDQGSRVVLEO\UHSOLFDEOHSUDFWLFHVWKDWKDYHHPHUJHG7KHFRQFOXVLRQVVHFWLRQÁRZVIURPWKHSUHYLRXVVHFWLRQ
LGHQWLI\LQJSUREOHPVDQGFRQVWUDLQWVWRODQGDQGKRXVLQJULJKWVGHOLYHU\7KHÀQDOSDUWRI WKHUHSRUWPDNHVUHFRPPHQGDWLRQV
7KHVH DUH GHVLJQHG WR EH UHDOLVWLF WDNLQJ LQWR DFFRXQW WKH VSHFLÀF FRQGLWLRQV LQ HDFK FRXQWU\ ZLWKLQ WKH FRQWH[W RI WKH
region.
This industrialisation process generated an ever-increasing 1.2 Legal system and governance structure
H[RGXVRI UXUDOIDPLOLHVWRWKHFLWLHVDQGWRZQV:KLOHXSWR
1940 the population structure had been overwhelmingly rural, Brazil is a federal republic, with a representative system
today 80 percent of Brazilians live in metropolitan urban and democratic regime in accordance with the Brazilian
DUHDVVXFKDV6mR3DXOR5HFLIH)RUWDOH]DDQG3RUWR$OHJUH Constitution of 1988. The Brazilian state is organised into
Urbanisation proceeded apace during periods of democratic the following federal units: One union, 26 states, 5,559 mu-
and non-democratic rule. However, the last military govern- QLFLSDOLWLHV DQG RQH IHGHUDO GLVWULFW WKH FDSLWDO %UDVLOLD 97
PHQWDOVRLQFUHDVHGFHQWUDOJRYHUQPHQWFRQWURO All of these units are autonomous. 98 The Brazilian federal
over urban and housing policies, weakening the powers of system, as an innovative component of political decentralisa-
SURYLQFLDODQGPXQLFLSDOJRYHUQPHQW²DQGLQGHHGWKHULJKWV tion, recognises the municipality as a component and autono-
of the population as a whole. mous member of the federation, along with the union and
97 Source: http://www.tesouro.fazenda.gov.br/estados_municipios/index.asp
98 The federal territories are part of the union and can be transformed into states or
96 Brazilian Institute of Geography and Statistics. (2000). reintegrated into the state of origin.
the states. 99 Municipalities can approve their own munici- states and municipalities have jurisdiction over public lands
pal constitution. As a general rule, matters of predominant within their borders.
international and national interest are the responsibility of
WKHXQLRQDOOPDWWHUVWKDWDUHQRWOLVWHGDVH[FOXVLYHIHGHUDO State responsibilities
powers by the Constitution are the responsibility of states. 100 5HVSHFWLQJ WKH SULQFLSOH RI FRQFXUUHQW XUEDQ ODZ MXULVGLF-
In Brazil, there is no regional jurisdiction and matters of local tions, in the absence of an applicable federal law the states
interest fall within the responsibility of the municipalities. will have full powers to issue suitable regulations. 102 The
states have concurrent legislative capacity over legal services
As a federal system, there is a division of legislative juris- and public legal defence. 103 However, only the president
dictions and political-administrative responsibilities and of the republic can introduce laws related to the creation of
obligations between the union, states and municipalities. The general rules for the organisation of the public legal defence
legislative jurisdictions are those related to the formulation V\VWHPRI WKHVWDWHVWKH)HGHUDO'LVWULFWDQGWKHWHUULWRULHV 104
and adoption of legislation by the federal, state and munici- Once generally determined by the federal president, all three
pal parliaments. The political-administrative responsibilities SRZHUVWKHXQLRQWKHVWDWHVDQGWKH)HGHUDO'LVWULFWKDYH
are related to the implementation and monitoring of public concurrent jurisdiction over the application of this system.
SROLFLHVDQGSURJUDPPHV²LQRWKHUZRUGVHYHU\WKLQJUHODWHG The public legal defence institution has the prime respon-
to activities that are mandatory to the union, states or mu- sibility for providing legal assistance so that those who are
nicipalities. 101 The rights and fundamental guarantees of the socially vulnerable obtain justice. In addition, the institution
people are supposed to be implemented through legislation is of fundamental importance in the defence of cases related
DQGSXEOLFSROLFLHVZKLFKVHHNWRIXOÀOWKHIXQGDPHQWDORE- to access to land and housing rights. 105
jectives of promoting social justice, eradicating poverty and
UHGXFLQJVRFLDOLQHTXDOLWLHV6HH$SSHQGL[,IRUDGHVFULSWLRQ In relation to the judiciary, the states also have concurrent
of the various units of government and their jurisdictions. legislative capacity over proceedings in matters of procedural
law, legal assistance and special courts for small cases. 106
Federal responsibilities Based on this jurisdiction, the states may establish special
:LWKUHJDUGWRXUEDQGHYHORSPHQWLQFOXGLQJKRXVLQJEDVLF proceedings for urban adverse possession, for regularising
sanitation and public transportation, the union has the XUEDQVTXDWWHUVDQGIRUVSHFLDOFRQFHVVLRQVIRUKRXVLQJSXU-
responsibility to establish general guidelines that must be poses, all of which are instruments of land regularisation.
followed by federal, state and municipal authorities.
7RJHWKHUZLWKWKHXQLRQDQGWKH)HGHUDO'LVWULFWWKHVWDWHV
8QGHU$UWRI WKH&RQVWLWXWLRQODQGVVXFKDVWKHFRXQWU\·V are bound by law to implement programmes of housing con-
coastline and borders, the federal roads, the rivers and islands, struction and to improve housing and basic sanitation condi-
the beaches and areas traditionally occupied by indigenous WLRQV7KHVWDWHRI 6mR3DXORIRUH[DPSOHKDVHVWDEOLVKHGD
peoples are considered federal public land, and it is the re- state system of housing policies that has created a series of
sponsibility of the union to regulate their use. Similarly, the housing laws to be implemented by the state Department of
Housing and the Urban Development and the Housing and v Grant special concession for housing purposes to ten-
8UEDQ'HYHORSPHQW&RPSDQ\&'+8 ants living in irregular public areas.
)XUWKHUPRUH $UW RI WKH &RQVWLWXWLRQ VWDWHV WKDW WKH
Municipal responsibilities PXQLFLSDOLWLHVKDYHSRZHUVWRFUHDWHDQGFROOHFWSURSHUW\WD[
The municipality has the jurisdiction, where necessary, to RQXUEDQODQGDQGEXLOGLQJV7KLVWD[PD\YDU\LQDFFRUGDQFH
issue laws supplementing state and federal legislation as ap- with the value of the property and the purpose for which it is
plied to local matters such as environment, education, culture, used and there can be different rates in different areas of the
health and urban rights and law. The councillors have the FLW\7KHWD[PD\DOVREHXVHGDWSURJUHVVLYHO\KLJKHUUDWHVWR
authority to legislate in the municipality, according to Art. 29 SHQDOLVHRZQHUVRI XUEDQSURSHUW\WKDWIDLOVWRIXOÀOLWVVRFLDO
RI WKH)HGHUDO&RQVWLWXWLRQ function as laid down in the municipal master plan.
:KHQDELOOKDVEHHQDSSURYHGLQWKH1DWLRQDO&RQJUHVVLW In the last two decades the number of women judges has
LV VHQW WR WKH SUHVLGHQW IRU KLVKHU DSSURYDO DQG VDQFWLRQ increased. Out of the current total of 14,400 members of
$UW7KHSUHVLGHQWKDVWKHSRZHUWRYHWRWKHELOOZKROO\ the Brazilian Association of Judges, 4,089 are women.
RU SDUWLDOO\ LI VKH FRQVLGHUV LW WR EH XQFRQVWLWXWLRQDO RU
FRQWUDU\WRWKHSXEOLFLQWHUHVW+LVKHUGHFLVLRQPXVWUHDFK Public defence
the president of the Senate within 15 working days and, if 7KHRIÀFHRI WKHSXEOLFGHIHQGHULVUHVSRQVLEOHIRUOHJDOJXLG-
WKH YHWR SRZHUV KDYH EHHQ XVHG D GHWDLOHG H[SRVLWLRQ RI ance and defence of litigants unable to pay for private lawyers
the reasons must be included. An absolute majority of the in all types of cases. They provide pro-bono service at all lev-
1DWLRQDO &RQJUHVV PD\ UHMHFW WKH YHWR DQG ZKHUH WKLV KDS- HOVRI WKHMXVWLFHV\VWHPLQDFFRUGDQFHZLWK$UW/;;,9
pens the bill is sent back to the president for publication in Supplementary legislation organises the public legal defence
its original form. LQWKHXQLRQLQWKH)HGHUDO'LVWULFWDQGWKHWHUULWRULHVDQG
provides guidelines for the respective organisations in the
Judiciary states. 113 In addition to a federal public defender, each state
The judiciary consists of the following institutions: must provide a public defender. Twenty-four states in Brazil
v 6XSUHPH)HGHUDO&RXUW
According to the census carried out by IBGE in 1995, about 122 The total amount of urban residential construction is the number of permanently
occupied private residences (whether located in houses, apartments or rooms) capable
4.8 million rural families have no land and the urban housing of adequately housing a person or a family or those linked by parental connections or
domestic dependence.
This agrarian situation is responsible for the presence of Constitution, this being a reserved property created with the
large-scale hunger in the countryside and for the migration SXUSRVHRI JXDUDQWHHLQJWKHLQGLJHQRXVSHRSOHV·ULJKWVRYHU
of 50 million people to the cities over the last 30 years. 128 it. They are, therefore, unavailable and inalienable lands 130.
The process of agrarian reform in Brazil neither maintained Since the adoption of the Constitution of 1988, the recogni-
the rural population nor provided for their needs. According tion of collective territorial rights of the indigenous peoples
WR GDWD VXSSOLHG E\ WKH 1DWLRQDO ,QVWLWXWH RQ &RORQLVDWLRQ of Brazil has improved considerably, so that today about 12
DQG $JUDULDQ 5HIRUP ,1&5$ 129 from 1964 to 1994, SHUFHQW RI %UD]LO DV D ZKROH LQFOXGLQJ SHUFHQW RI WKH
218,534 families were resettled on rural land, while from 1995 %UD]LOLDQ $PD]RQ LV QRZ OHJDOO\ UHFRJQLVHG DV LQGLJHQRXV
WRWKLVQXPEHUJUHZWR,1&5$UHSRUWHGWKDW WHUULWRU\ +RZHYHU WKHVH ULJKWV DUH QRW HTXDOO\ GLVWULEXWHG
in 2003 alone 36,301 families had been resettled. Although ²IRUH[DPSOHWKHLQGLJHQRXVSHRSOHZKROLYHLQWKHUHJLRQV
impressive, this number of families settled on the land does ZKHUH WKH RULJLQDO FRORQLDO RFFXSDWLRQ ZDV VWURQJHVW WKH
not come close to meeting demand. Both the IBGE and the QRUWKHDVWWKHHDVWDQGVRXWKDUHFRQÀQHGWRPLFURWHUULWR-
Ministry of Agriculture state that more that 5 million families ries, often on the peripheries of large cities. In the Amazon,
QHHGODQGLQ%UD]LO)XUWKHUPRUHWKHPHDQVDUHDYDLODEOHWR large numbers of indigenous people live on the peripheries
GRPXFKPRUHDVRIÀFLDOGDWDVKRZWKDWODQGLVDYDLODEOHWR RI ODUJH FLWLHVVXFK DV 0DQDXV DQG %RD 9LVWD DV PLQRULWLHV
settle more than 2.5 million families. while in some small cities like São Gabriel da Cachoeira in
the state of Amazonas, they are in the majority and combine
The indigenous population WKHLUWUDGLWLRQDOZD\VRI OLYLQJORQJKRXVHVDQGIDUPVZLWK
7KH %UD]LOLDQ 6RFLRHQYLURQPHQWDO ,QVWLWXWH ,QVWLWXWR the more usual urban residences.
6RFLRDPELHQWDO XVLQJ KHWHURJHQHRXV GDWD VXEMHFW WR YDUL-
ous interpretations, estimates that some 350,000 indigenous The traditional black populations/quilombos
people distributed in 218 groups now live in Brazil. This Afro-Brazilians make up 45 percent of the population, form-
amounts to about 0.2 percent of the total population but ing the largest black population outside of Africa. Blacks
SUREDEO\ GRHV QRW UHSUHVHQW WKH WUXH ÀJXUH EHFDXVH WKHUH make up the poorest of the poor population, with lower
are still many tribes about which little is known, and many educational levels, and the worst and lowest-paying jobs. The
indigenous people living in cities. The 2000 IBGE census %UD]LOLDQ &RQVWLWXWLRQ RI $UW RI WKH 7UDQVLWRU\
asked people to identify their own racial origin and 700,000 &RQVWLWXWLRQDO'LVSRVLWLRQVHQVXUHVWKHUHPDLQLQJGHVFHQG-
LQGLYLGXDOVLGHQWLÀHGWKHPVHOYHVDV´LQGLJHQRXVµ ants of the Quilombo 131 communities the rights to their
traditional lands and guarantees them the right to maintain
The Constitution has created a special situation for the indig- their culture. The state must protect the cultural manifesta-
enous peoples and their territories. In accordance with Art. WLRQV DQG IRUPV RI H[SUHVVLRQ RI DOO WKH GLIIHUHQW JURXSV
231, indigenous land is considered property of the federal PDNLQJ XS %UD]LOLDQ VRFLHW\ $UW RI WKH &RQVWLWXWLRQ
union, but is meant for the permanent possession of the all of whom are considered assets to Brazilian culture, and
LQGLJHQRXVSHRSOHVZKRKDYHWKHH[FOXVLYHXVXIUXFWRI WKH
130 The indigenous lands of the country occupy 105,172,719 ha, corresponding to 12
ULFKHVIURPWKHODQGWKHULYHUVDQGWKHODNHVH[LVWLQJZLWKLQ percent of the national territory. From this total, 359 or 60.54 percent are already titled
them. The indigenous lands are assets of the union and the RU DW OHDVW LGHQWL¿HG E\ WKH 1DWLRQDO ,QGLDQ )RXQGDWLRQ )81$, 7KH PDMRULW\ RI QRQ
demarcated lands are located in the northeast and southeast – regions where pressure
constitutional granting of these lands aims precisely at pre- from economic interests is lower.
serving them and maintaining the link that is found in the
131 The quilombos were originally villages and towns set up by slaves who had sought
WKHLUOLEHUW\E\ÀHHLQJIURPWKHLUFRORQLDOPDVWHUVDQGHVWDEOLVKLQJWKHPVHOYHVLQUHPRWH
128 Valente, F. (2003:375).
areas. The people and their descendents born in liberty were known as quilombolas
129 National Institute on Colonisation and Agrarian Reform –INCRA. (2002). communities.
therefore are entitled to the dignity and respect afforded to OHVVWKDQPHQIRUGRLQJWKHVDPHW\SHRI MRELQWKH\
all the other diverse social elements. In this way, the state laid HDUQHGWKHHTXLYDOHQWRI SHUFHQWRI ZKDWPHQHDUQHG
GRZQ VSHFLÀF UXOHV IRU WKH SURWHFWLRQ RI WKH SK\VLFDO DQG $FFHVV WR WUDLQLQJ DQG SURIHVVLRQDO TXDOLÀFDWLRQ LV GLIÀFXOW
cultural integrity of these communities and recognised the DQGDVDFRQVHTXHQFHDPDMRULW\RI ZRPHQSHUIRUPPHQLDO
importance of the TXLORPERV in the formation of Brazilian ODERXUDQGRUZRUNLQWKHLQIRUPDOVHFWRU
society.
The number of women heads of household has grown and
According to the concept adopted by the Brazilian LVHVWLPDWHGWRGD\DWSHUFHQW&RQVHTXHQWO\WKHUHLVFRQ-
Anthropological Association, TXLORPERV are “any rural black siderable demand for popular housing programmes of social
community, traditional villages of descendants of escaped interest by women-headed households.
slaves living by a subsistence culture and maintaining their
cultural manifestations with strong links to the past.” Despite Since 2000, female rural workers have obtained rural pension
constitutional guarantees, of the 743 remaining communities rights as well as the right to possession of rural land allot-
RI RIÀFLDOO\ LGHQWLÀHG TXLORPERV, only 42 have been legally PHQWV$QGVLQFHWKH&RQVWLWXWLRQ$UWDQG
recognised and 29 actually titled. has guaranteed women the right to have agrarian reform
land titled in their own names, even if they were not legally
The majority of Afro-Brazilians in the cities live in inad- married. However, only in 2001 did the government alter the
HTXDWHKRXVHVRUIDYHODV5DFLVPDQGUDFLDOGLVFULPLQDWLRQDUH traditional male land ownership practice and start to issue
LQWLPDWHO\UHODWHGWRXQHTXDODFFHVVWRSURSHUW\DQGUHVRXUFHV WLWOHVLQDFFRUGDQFHZLWKWKH&RQVWLWXWLRQ1RVWDWLVWLFVDUH
by social groups who are object of discrimination and racism. available on how many women have been allocated such land
In Brazil any effective urban reform must start by promoting and how many women have a joint title with their spouse.
UDFLDO HTXDOLW\ VR WKDW WKH $IUR%UD]LOLDQ SRSXODWLRQV DQG
indeed all minorities, may live and work with dignity. The /DZVSURWHFWLQJSHUVRQVIURPVH[XDODQGGRPHVWLFYLROHQFH
social movements of Afro-Brazilians and of urban people have yet to be fully enforced. According to the Centre for
DUHWKHPDLQVXSSRUWHUVRI WKHVWUXJJOHDJDLQVWUDFLDOLQHTXDO- +RXVLQJ 5LJKWV DQG (YLFWLRQV &2+5( ´VXFK SURWHFWLRQ
ity in Brazil. By the 1990s they had grown strong enough to LVFULWLFDOLQWKHÀHOGRI KRXVLQJULJKWVDVZRPHQRIWHQKDYH
GHPDQGWKHLPSOHPHQWDWLRQRI DIÀUPDWLYHDFWLRQSROLFLHV to choose between having a house in which to live and being
IUHHIURPVH[XDOKDUDVVPHQWE\ODQGORUGVRUIURPGRPHVWLF
The situation of women YLROHQFH E\ IDPLO\ PHPEHUV )RU H[DPSOH $IUR%UD]LOLDQ
:RPHQFRQVWLWXWHSHUFHQWRI WKH%UD]LOLDQSRSXODWLRQEXW women in both urban and rural areas are often not consid-
account for only 6 percent of the Senate and 14 percent of ered good credit risks when they try to purchase housing.” 132
WKH)HGHUDO&RXQFLO,QWKHSUHVHQWJRYHUQPHQWRI 3UHVLGHQW 7KH 1DWLRQDO 6XUYH\ RI +RPHV E\ 6DPSOLQJ VKRZV
Luiz Inacio Lula da Silva however, several ministries are that 72 percent of women who sustain their children without
headed by women: Environment, Mining and Energy, Social a permanent male partner have a family income less than two
Development and Combat against Hunger, and the Special minimum salaries, and overall some 52 percent of women
'HSDUWPHQWVRI &RPEDWDJDLQVW'LVFULPLQDWLRQDQG5DFLDO have a per capita income less than one minimum salary.
,QHTXDOLW\DQG&RPEDWDJDLQVWWKH'LVFULPLQDWLRQRI :RPHQ
On the other hand, women make up two-thirds of the illiter- The situation in slums and tenements
ate population and, although they constitute 40 percent of In Brazilian cities many settlements are considered irregular
the workforce, only 20 percent achieve management posi- because they do not meet the urbanisation and environmen-
tions. Occupational segregation persists, and women are paid
2VyULR/HWtFLD0DUTXHVE
tal standards set out in the legislation and have generally been one at any time and without legal process, to arbitrarily
increase the rent, to cut off the water and power, etc.;
constructed informally and improperly constituted. These
areas go by many names, but in all of them the low-income v Lack of any legal security persists because the person
who actually rented the room out is not the owner;
SRSXODWLRQ VRPHKRZ VXEVLVWV LQ FRQGLWLRQV KDUGO\ ÀW IRU
animals. They occupy the land and build their shacks but are v The courts do not recognise that the residents have
rarely the owners, even though many of the settlements are legal rights of tenure; and
on public lands. v The rates for water and power are very high due to the
precarious condition of the electrical installations and
FRQVHTXHQWZDVWHRI HQHUJ\
1RWRQO\DUHUHVLGHQWV·OLYHVDQGKHDOWKLQGDQJHUVXFKVHWWOH-
ments also put the environment at risk. 7KHVHOLYLQJFRQGLWLRQVDUHIRXQGIRUH[DPSOHLQWKHFLWLHV
RI 5LR GH -DQHLUR 6DOYDGRU 6DQWRV DQG HVSHFLDOO\ LQ 6mR
The favela LV D KRXVLQJ QXFOHXV EXLOW JHQHUDOO\ ZLWKRXW Paulo.
SHUPLVVLRQ RI WKH RZQHUV RQ SULYDWH RU SXEOLF ODQG E\
individuals or organised groups of low-income people who 1.4 The National Rapporteurs
build the shacks, dig out access tracks and steps, and illegally
UXQ SRZHU OLQHV DQG SHUKDSV LQVWDOO D IHZ ZDWHU WDSV DOO 7KH1DWLRQDO5DSSRUWHXUVRQ(FRQRPLF6RFLDODQG&XOWXUDO
without the assistance or the agreement of the authorities, 5LJKWVSURMHFWDUHLQWHQGHGWRFRQWULEXWHWRZDUGVWKHDGRS-
which often just look the other way. )DYHODV take advantage of tion of higher human rights standards in Brazil based on the
urban land left unused for a long period of time. The main &RQVWLWXWLRQ WKH 1DWLRQDO 3URJUDPPH RQ +XPDQ 5LJKWV
difference between the favela and other types of settlements DQG WKH ,QWHUQDWLRQDO &RYHQDQWV RQ +XPDQ 5LJKWV ZKLFK
DSDUWIURPWKHDSSDOOLQJFRQVWUXFWLRQLVWKDWWKHUHJHQHUDOO\ %UD]LOKDVUDWLÀHG7KLVLVGRQHWKURXJKWKHQRPLQDWLRQRI
is no legal relationship between the occupier and the real H[SHUWVLQHDFKVSHFLÀFULJKWVÀHOGHGXFDWLRQKHDOWKIRRG
owner, whether public or private. DGHTXDWH KRXVLQJ ODERXU DQG HQYLURQPHQW 7KH %UD]LOLDQ
3ODWIRUP RQ (FRQRPLF 6RFLDO DQG &XOWXUDO 5LJKWV FRRUGL-
The worst living conditions in Brazilian cities are found in the QDWHV WKLV SURMHFW ZLWK VXSSRUW IURP WKH 8QLWHG 1DWLRQV
FRUWLoRV WHQHPHQWV ZKLFK DUH JHQHUDOO\ ROGHU RU GDQJHURXV 819ROXQWHHUV3URJUDPPHDQGWKH6SHFLDO6HFUHWDULDWRQ
EXLOGLQJVURXJKO\GLYLGHGLQWRURRPVDQGÁDWVRYHUFURZGHG +XPDQ 5LJKWV 7KH 1DWLRQDO 5DSSRUWHXUV ZHUH QRPLQDWHG
and dirty, and providing at best subhuman living conditions. E\ FLYLO VRFLHW\ RUJDQLVDWLRQV WR FDUU\ RXW IDFWÀQGLQJ PLV-
Typically one or more of the following conditions may sions, to hear and act on complaints received, to investigate
apply: human rights violations and to elaborate reports and propos-
v Structurally unsound buildings have been arbitrarily DOV7KHSURMHFWZDVEDVHGRQWKHH[SHULHQFHDFTXLUHGE\WKH
subdivided into various rooms for rent or sub-rent; 81 6SHFLDO 5DSSRUWHXUV LQ RWKHU FRXQWULHV DQG LV WKH ÀUVW
v The number of inhabitants is completely incompatible H[SHULHQFH WR VHW XS 1DWLRQDO 5DSSRUWHXUV WR LQWHUDFW ZLWK
with the size of the building resulting in severe over- WKH81KXPDQULJKWVV\VWHP
crowding;
v Hygienic conditions are bad because of the entirely in- $W SUHVHQW VL[ 1DWLRQDO 6SHFLDO 5DSSRUWHXUV PRQLWRU WKH
DGHTXDWHQXPEHURI WRLOHWVRUEDWKURRPVIRUVRPDQ\ IROORZLQJ ULJKWV HGXFDWLRQ KHDOWK IRRG DGHTXDWH KRXVLQJ
people; labour and the environment. The mandate of these rap-
v The building owners usually subcontract the rent col- SRUWHXUVLVWZR\HDUV7KHÀUVWUHSRUWZDVSUHVHQWHGLQWKH
lection to third parties who employ thugs to evict any- 59th6HVVLRQRI WKH+XPDQ5LJKWV&RPPLVVLRQLQ*HQHYDLQ
135 The popular amendment proposal on urban reform for the Constitution project
133 More information about National Special Rapporteurs can be found on www.polis.
in 1987 was underwritten by 131,000 voters and presented by various organisations.
org.br and www.fase.org.br.
Among them were the National Articulation on Urban Land (ANSUR), Defence Movement
134 This particular area has deep emotive roots among Afro-Brazilians populations of Slum Dwellers (MDF), National Federation of Architects (FNA), National Federation
EHFDXVHGXULQJWKHVODYHSHULRGLWZDVWKHFHQWUHRIEUXWDOSXEOLFÀRJJLQJRIVODYHV7KH of Engineers (FNE), National Coordination of Borrowers (CNM) and the Institute of
word pelourinhoVLJQL¿HVDSXEOLFZKLSSLQJSRVW Brazilian Architects.
Constitution, and in the area of civil society, it has organised Housing Council, with the objective of implementing and
WKH1DWLRQDO)RUXPRQ8UEDQ5HIRUPWKDWFRRUGLQDWHVWKH formulating a national housing policy for the low-income
following groups: population. This Project of Law by Popular Initiative was
v 3RSXODU 0RYHPHQWV 1DWLRQDO 8QLRQ IRU 3RSXODU ÀQDOO\DSSURYHGE\1DWLRQDO&RQJUHVVDQGEHFDPHDIHGHUDO
+RXVLQJ 1DWLRQDO &RQIHGHUDWLRQ RI 5HVLGHQW $VVR- ODZLQ-XQH/DZQR
FLDWLRQV&21$03RSXODU0RYHPHQW&HQWUH&03
DQG1DWLRQDO0RYHPHQWRQWKH)LJKWIRU+RXVLQJ The activities of the organisations that are members of
v 3URIHVVLRQDO (QWLWLHV 1DWLRQDO $UFKLWHFWXUDO )HGHUD- WKH 1DWLRQDO )RUXP RQ 8UEDQ 5HIRUP DUH FRQFHQWUDWHG
WLRQ*HRJUDSKLFDO$VVRFLDWLRQRI %UD]LO$*%%UD- in Brazilian cities. The forum is also organised by local or
]LOLDQ $VVRFLDWLRQ RI (QJLQHHUV DQG $UFKLWHFWV 1D- UHJLRQDO IRUXPV LQ VRPH FLWLHV VXFK DV 6mR 3DXOR 5LR GH
WLRQDO )HGHUDWLRQ RI (QJLQHHULQJ 8QLRQV 1DWLRQDO -DQHLUR&XULWLED%HOR+RUL]RQWH3RUWR$OHJUH)ORULDQySROLV
)HGHUDWLRQ RI )HGHUDO 6DYLQJV %DQN (PSOR\HHV DQG 6DOYDGRU5HFLIH)RUWDOH]D-RmR3HVVRD6mR/XLV7HUH]LQD
1DWLRQDO)HGHUDWLRQRI (QJLQHHULQJDQG$UFKLWHFWXUDO
0DFHLR %HOpP DQG 3RUWR 9HOKR 6XFK UHJLRQDO DQG ORFDO
Students; and
forums take the following forms:
v 1*2V3ROLV,QVWLWXWH%UD]LOLDQ,QVWLWXWHRQ0XQLFLSDO
$GPLQLVWUDWLRQ,%$0)$6(,%$6(&$$3%HQWR v Actions in the defence of the right to the city and of
5XELmR&2+5(DQG1DWLRQDO$VVRFLDWLRQRI 3XEOLF communities whose housing rights are threatened with
7UDQVSRUWDWLRQ$173 forced displacement by the implementation of projects
IRU GHYHORSPHQW RU WRXULVWSURPRWLRQ DQGRU LQIUD-
6RPH DFWLRQV E\ WKH 1DWLRQDO )RUXP RQ 8UEDQ 5HIRUP structure construction or improvement;
GHVHUYHVSHFLDOPHQWLRQ7KHÀUVWZDVWKH\HDUÀJKW v Participation in programmes and projects for land reg-
WR LQ FRQJUHVV WKDW VXFFHHGHG LQ REWDLQLQJ DSSURYDO ularisation in informal and irregular urban settlements;
IRUWKH&LW\6WDWXWH/DZQRDQDWLRQDOODZWKDW v Organisation of counselling and capacity building on
institutes the legal framework and principles of urban land public rights and policies for popular leaderships and
reform. Another important gain was the establishment of organisations; and
the Ministry of Cities in 2003. v Participation in city management processes.
concept of the right to the city as a new human right based PDQHVFHQGHQWV GH TXLORPERV ² WKDW LV WKH DUHDV RI WKH RULJLQDO
on a programme of urban reform. TXLORPERV still in the hands of Afro-Brazilians today. Some
RI WKHVHRUJDQLVDWLRQVDUHWKH8QLÀHG%ODFN0RYHPHQWWKH
%R[:RUOG&KDUWHURQWKH5LJKWWRWKH&LW\ 1DWLRQDO &RRUGLQDWLRQ RI WKH $UWLFXODWLRQ RI 5XUDO $IUR
The Right to the City in the draft world charter is defined as the right to an %UD]LOLDQ4XLORPER&RPPXQLWLHVWKH$VVRFLDWLRQRI 5XUDO
equitable use of cities under the principles of sustainability and social justice. Afro-Brazilian Communities in Maranhão, and Geledés, an
This is understood to be a collective right of all the city’s inhabitants, and ,QVWLWXWHIRU$IUR%UD]LOLDQ:RPHQ
particularly of the vulnerable and disadvantaged groups; it legitimises their
action and organisation, respects their manners and customs, with the overall 9DULRXV ZRPHQ·V QHWZRUNV VXFK DV WKH 1DWLRQDO )HPDOH
objective of achieving full implementation of the right to an adequate standard 1HWZRUNRQ+HDOWKDQG6H[XDODQG5HSURGXFWLYH5LJKWVDOVR
of living. Since all human rights are interconnected and interdependent, the H[LVWLQ%UD]LODQGDUHH[WUHPHO\DFWLYH2WKHUVFRQFHQWUDWH
Right to the City includes the rights to land, means of subsistence, labour,
RQJHQGHU626&RUSRDQGUDFLDOLVVXHV*HOHGpV)DOD3UHWD
health, education, culture, housing, social protection, healthy environments,
&ULRXODLQFOXGLQJWKH$IUR%UD]LOLDQ:RPHQ·V2UJDQLVDWLRQV
sanitation, public transportation, leisure and information. It also includes the
right to meet and organise freely, the respect for minorities and immigrants,
LQ5LRGH-DQHLURDQGSRSXODURUJDQLVDWLRQVVXFKDVWKH&03
and for ethnic, sexual, and cultural plurality, and the guarantee of the Many gains have been made in the past decades, among them
preservation of historical and cultural heritage. WKHUHFRJQLWLRQRI HOHFWRUDOVXIIUDJHDQGZRUNHUV·ULJKWVWKH
FRQTXHVWRI IXOOFLYLOFDSDFLW\GLYRUFHODZVWKHUHFRJQLWLRQ
At national level, the following organisations are involved in the formulation
of a stable union independent of traditional marriage and
of this draft World Charter:
the guarantee of reproductive rights.
The National Forum on Urban Reform; the National Prefect Front; the
Brazilian Architectural Institute; the Permanent Forum for the Handicapped;
In recent years women have been taking a growing part in the
the Federal Council on Architecture, Engineering and Agronomy; the National
SRSXODU KRXVLQJ PRYHPHQWV 5HVHDUFK FRPSOHWHG LQ
Sanitation Front; the National Forum on Popular Participation; the National
Association of Post-Graduation on Urban and Regional Planning; and the has shown considerable participation by women in housing
National Confederation of Liberal Professions and the Inter-municipal Forum programmes of Self-Management 0XWLU}HVSRSXODUKRXVLQJ
on Culture programmes with government-supplied materials and volun-
WHHU ODERXU 139 In these programmes, women stood out as
On the international scene, the following organisations play a part in the
formulation: managers and leaders, making decisions and representing the
movements. Because of this marked female presence and the
The International Habitat Coalition; the Centre on Housing Rights and Evictions;
REYLRXVHIÀFLHQF\RI WKHLUOHDGHUVKLSLQWKH6HOI0DQDJHPHQW
Latin American Secretariat of Popular Housing; International Research Group
0XWLU}HV, many other programmes are being initiated in which
on Law and Urban Space; UN-HABITAT (UN Human Settlements Programme,
including the Urban Management Programme); Latin American Mega-Cities women can obtain title to the housing built or urbanised by
Network; Huairou Commission; Women and Habitat Network; World Artists the government.
in Alliance Network; and the Investigative Institute on Housing and Habitat
of the National University of Córdoba, Argentina. $Q H[DPSOH LV WKH UHFHQW MRLQW DUWLFXODWLRQ RI WKH +RXVLQJ
8QLRQ 0RYHPHQW WKH :RPHQ DQG +DELWDW 1HWZRUN WKH
Other actors in civil society 6SHFLDO&RRUGLQDWRUIRU:RPHQDQRUJDQLVDWLRQRI WKHPX-
The role of Afro-Brazilian organisations is central in dealing QLFLSDOLW\RI 6mR3DXORWKH/LYLQJ)HPLQLQH2UJDQLVDWLRQ
with racial and gender matters through studies and cam- the Popular Movement Centre and Lilith House. Law no.
paigns against all forms of racial and social discrimination 13,770 of January 29 2004 obliges municipal housing pro-
DQG LQHTXDOLW\ 7KHLU REMHFWLYH LV WKH IXOO LPSOHPHQWDWLRQ grammes to give priority to women both in the titling of
RI WKHLU ULJKWV LQ WKH VOXPV DQG LQ WKH DUHDV GHÀQHG DV re-
139 Salvador, Z. (1993).
houses and in participation of professional and assistance real rights: property, land, the use thereof, use of housing, ac-
programmes. Being a very recent law it is still in process of cess facilities, the right of the buyer of the property, the pawn
implementation by the municipality. RUSOHGJHDQGWKHPRUWJDJH5HDOULJKWVFDQQRWEHDVXEMHFW
of free choices between the parties, and they cannot create
In the rural areas all over the country, a social movement their own rules. The rules governing real rights are regulated.
FDOOHG WKH /DQGOHVV :RUNHUV· 0RYHPHQW 067 LV ZHOO )RUH[DPSOHWREHYDOLGWKHPDQQHURI EX\LQJDQGVHOOLQJ
organised and actively promotes the practical realisation of an urban or rural property must be in accordance with the
agrarian reform. This movement has already succeeded in rules. According to Art. 1277 the ownership of the urban or
creating many rural settlements operating sustainable and UXUDOSURSHUW\LVFRQVLGHUHGWREHDFTXLUHGE\WKHSXUFKDVHU
IDPLO\JURXSDJULFXOWXUDOSURGXFWLRQH[SHULPHQWVDVZHOODV RQO\ ZKHQ WKH DFW LV UHJLVWHUHG LQ WKH 3XEOLF 5HJLVWHU ,W LV
invading unproductive rural lands that, by law, ought to have important to stress that the types of rights considered below,
EHHQ H[SURSULDWHG E\ WKH IHGHUDO JRYHUQPHQW IRU SXUSRVHV ZLWK WKH H[FHSWLRQ RI UHQWDO DUH FRQVLGHUHG UHDO ULJKWV E\
of agrarian reform. Brazilian law.
0DQ\PHPEHUVRI WKH1DWLRQDO1HWZRUNRI 3RSXODU/DZ\HUV Many, previously informal, tenure types have been formalised
5(1$3 ZRUN RQ KXPDQ ULJKWV KRXVLQJ DQG UXUDO LVVXHV with the adoption of the City Statute.
with a range of other organisations.
Rural areas
7KH %UD]LOLDQ ,QVWLWXWH IRU 8UEDQ 5LJKWV RUJDQLVHV GHEDWHV The tenure types are:
seminars and conferences on urban law, urban policies, urban v 2ZQHUVKLSIUHHKROGWHQXUH
GHYHORSPHQWDQGVKDUHVH[SHULHQFHVDQGVWXGLHVDERXWXUEDQ v 5XUDODGYHUVHSRVVHVVLRQDVDPHDQVWRREWDLQWHQXUH
reform. $UWRI WKH&RQVWLWXWLRQ
v 5HQWDO $UWRI WKH&RQVWLWXWLRQ
2 L a n d T e n u re
v 5LJKWVRI 8VHWHPSRUDU\ORDQIRUXVH$UWSDU
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2.1 Introduction
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RI
In Brazilian law various instruments can be used for the legal
recognition of the use, possession or ownership of urban All these types of possession are in theory obtainable either
ODQG7KHVHLQVWUXPHQWVDUHVSHFLÀFDOO\ODLGGRZQLQWKH&LW\ by men or women.
6WDWXWHDQGWKHFLYLOFRGH)RUDFRPSOHWHXQGHUVWDQGLQJRI
WKH UHJXODULVDWLRQ SURFHVV LW LV ÀUVW QHFHVVDU\ WR FODULI\ WKH Urban areas
VLJQLÀFDQFHRI WKHDFWXDOULJKWVIRUHVHHQLQWKHFLYLOFRGHV The tenure types in urban areas are described in more detail
ODWHUDQGOLVWHGLQ$SSHQGL[,,
The civil code established rules for personal and real rights.
Personal rights may be subject to some free choices between The ZEIS
WKHSDUWLHVZKRFDQFUHDWHVRPHRZQUXOHV)RUDSHUVRQDO 7KH=RQHRI 6SHFLDO6RFLDO,QWHUHVW=(,6LVRQHRI WKHLQ-
right it is necessary to have two persons, the creditor and the struments for land ownership regularisation foreseen in Art.
debtor of some obligation. A real right is the relation between 9IRI WKH&LW\6WDWXWH=(,6LVDVSHFLDO]RQLQJFDWHJRU\
one person and a piece of property. In accordance with Art. that allows variable rules to be applied to the use and occupa-
1225 of the civil code, rights to the following are considered tion of land in projects of urban land ownership regulation.
It applies to areas that are presently occupied in discordance 2.2 Tenure types
with the formal legislation as regards the allotment, use,
occupation or construction standards. The objective is to Ownership
VDIHJXDUGWKHULJKWWRDGHTXDWHKRXVLQJ Buying and selling
Ownership through purchase is the most common tenure
The ZEIS as a special zoning category must be declared by system provided for in the civil code for the formal land
PXQLFLSDO OHJLVODWLRQ 6RPH PXQLFLSDOLWLHV VXFK DV 5HFLIH PDUNHW RI XUEDQ SURSHUW\ DFTXLVLWLRQ 140 It is a contract
DQG%HOR+RUL]RQWHKDYHVSHFLÀFOHJLVODWLRQRQ=(,67KH agreed between the seller and the purchaser for transfer of
ZEIS may also be marked out in the municipal master plan. the property deeds on the payment of an amount covering
8VXDOO\WKHPXQLFLSDOH[HFXWLYHKDVWKHDXWKRULW\WRSUHVHQWD WKH YDOXH RI WKH UHDO HVWDWH LQ TXHVWLRQ +DYLQJ VLJQHG WKH
project of law on the declaration of a ZEIS, especially if this SUHOLPLQDU\RUÀQDOGHHGVWKHRZQHULVREOLJHGWRVHOOKLV
is done through the master plan. In some municipalities, the her property under the agreed conditions, and undertakes to
municipal constitution also allows the legislature to declare SURYLGHWKHÀQDORZQHUVKLSGHHGZKHQDOODJUHHGSD\PHQWV
a ZEIS. In accordance with the Constitution and the City have been received. The buyer of the real estate will then
Statute a popular initiative can be used to present a project be recognised by the authorities and community as the new
of law in urban matters. The local community can therefore RZQHUDQGWKHGHHGGUDZQXSLQKLVKHUQDPHLVUHJLVWHUHG
present a popular initiative to declare a ZEIS to the local DQGÀOHGLQWKHSXEOLFSURSHUW\UHJLVWU\,I WKHEX\HURUVHOOHU
legislature. is a woman, the transaction can be completed in her single or
married name at her choice. If a couple is legally married the
In Belo Horizonte the ZEIS was adopted through the Land joint registration of their property is obligatory. The public
5HJXODULVDWLRQ 3URJUDPPH RI 6OXPV 2QH H[DPSOH LV WKH registry must include the name of both in accordance with
6HWWOHPHQW -DUGLP )LODGHOÀD 7KH PXQLFLSDO ODZ recognised the civil code.
this settlement as a ZEIS in order to implement the legalisa-
WLRQ RI ODQG WLWOHV 6RPH IDPLOLHV DUH EHQHÀFLDULHV RI In cases of irregular occupation of private or public lands,
this law. The families have to register their title in the public DQGWKHLQHYLWDEOHFRQÁLFWVUHODWHGWRWKLVWKHSXUFKDVHRI
register. The women have priority to receive the title of the WKLV ODQG E\ DJUHHPHQW FDQ SURYLGH D VROXWLRQ :KHUH WKH
ODQG7KURXJKWKH/DQG5HJXODULVDWLRQ3URJUDPPHVHWWOH- land was occupied by a group of persons, the occupiers usu-
ments have been recognised as ZEIS and legalised titles to ally organise themselves into a civil association, which then
the land have been provided to 11,835 families. Other cities negotiates purchase from the registered owner. If the land is
ZLWK =(,6 H[SHULHQFHV LQFOXGH 5HFLIH 5LR GH -DQHLUR DQG public property, the public administration may dispose of the
São Paulo. land for the construction of popular housing, settlement or
UHJXODULVDWLRQLI LWDGRSWVVSHFLÀFOHJLVODWLRQWRWKDWHIIHFW
:KHUHWKHFLW\DGPLQLVWUDWLRQLPSOHPHQWVWKHXVHRI WKHVH
zones of special social interest, the areas occupied by IDYHODV, Donation
allotments, irregular popular settlement groups and tenements ,I WKHODQGRZQHUDJUHHVWRGRQDWHKLVKHUSURSHUW\WRDQRWK-
can be legally recognised as dedicated for the construction of HUSHUVRQVKHVLJQVDGRQDWLRQRUWUDQVIHUFRQWUDFWWRWKH
social housing. The ZEIS allows the resident population to other person without payment. 141 This approach has been
obtain legal title by means of the various forms of posses- utilised by the municipal and state governments in provid-
sion discussed in detail below. ing popular housing to families in situations of risk, such as
to decide on the continuation or dissolution of the condo- or historical areas of large cities, especially in São Paulo. The
PLQLXPDIWHUH[HFXWLRQRI WKHXSJUDGLQJSODQ 142 usual procedure is for the owners of these tenement proper-
ties to lease them by contract to a third party, thus distancing
7KH VRFLDO LPSDFW RI SRRU FRPPXQLWLHV· ULJKW WR DGYHUVH WKHPVHOYHVIURPWKHVXEVHTXHQWLUUHJXODULW\DQGLQIRUPDOLW\
SRVVHVVLRQ GHSHQGV ODUJHO\ RQ WKH H[LVWHQFH RI WKH OHJDO The prime lessee then converts the precarious property into
and technical services provided by the state and municipal a collective residential building as cheaply as possible and
governments. The public defence institutions play a role in UHQWVRXWVPDOOURRPVDWH[RUELWDQWUHQWVWRSHRSOHZLWKORZ
claiming the land rights of these communities in the courts. incomes. The rents are very high when the precarious state
of the property and the barely habitable state of the rooms
So far, most favourable court decisions on adverse pos- LV FRQVLGHUHG )XUWKHUPRUH WKH UHVLGHQWV LQ WKH WHQHPHQW
session claims have been individual. Only a few cases have houses have no security of tenure because they have no writ-
concerned collective adverse possession and they have not ten contracts and their verbal contracts are with the prime
\HWEHHQÀQDOLVHG lessee and not with the legal owner of the building.
Surface rights may be applied in land regularisation pro- 3 Land M anagement Syst ems
grammes to make housing access viable to the low-income
population. If the urban area occupied by a slum is privately 3.1 The decentralised system
owned the right of surface can be conceded to the public au-
WKRULW\IRUWKHSURPRWLRQRI XUEDQLPSURYHPHQWLQIUDVWUXF- Although Brazil is a federal state, the responsibility for the
ture and occupation regularisation. In this case, the owner management of land is divided among the federal union, the
may obtain some compensation, such as the concession of state and the municipalities. Each federal entity has its own
the right to occupy another property instead of that which RUJDQLVDWLRQLQWKHVSKHUHVRI WKHH[HFXWLYHOHJLVODWXUHDQG
VKH LV ORVLQJ :KHUH WKH SXEOLF DGPLQLVWUDWLRQ RU RWKHUV MXGLFLDU\WKDWIRUPDFRPSOH[V\VWHPRI ODQGPDQDJHPHQW
have provided the necessary infrastructure, the respective as shown in Table 2.3.1 below. The public register systems
contracts shall specify that the resulting right of surface must DQGFDGDVWUHVÀWLQWRWKHVWDWHOHYHO+RZHYHUWKHXQLRQDQG
be transferred to the population occupying the area. the municipalities have their own cadastre systems to register
the lands and the buildings belonging to them, but these ad-
This is important in cases of buildings with more than one ministrative cadastres do not replace the public system, which
ÁRRU ZKHUH WKH WHQDQWRFFXSDQW ZKR KDV EHQHÀWHG IURP is always at state level.
UHJXODULVDWLRQFDQWUDQVIHUWKHULJKWRI VXUIDFHRI KLVKHUSORW
to others. This situation is very common in Brazilian slums
where the residents use a popular and informal variation of
the right of surface called the right of laje, meaning the right
WRFRQVWUXFWDGGLWLRQDOÁRRUVRQH[LVWLQJVWUXFWXUHV
7KH ULJKW RI VXUIDFH ZDV XVHG IRU H[DPSOH E\ WKH PXQLFL-
SDOLW\RI 3RQWmR5LR*UDQGHGR6XOVWDWH7KH/DZRI
2002 established the criteria to use this instrument for land
legalisation. So far, 74 families with the right of surface of
the public land for housing have been proposed.
)LJXUH/HYHOVRI ODQGPDQDJHPHQWMXULVGLFWLRQ
Union Level
State Level
Municipal level
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Ministry of Ministry of Agrarian Development: Ministry of Planning Ministry of Cities National Ministry of Justice
Culture National (rural) land policy (urban) Land Policy Urban land
and urban planning
National Secretariats
Registry of Rural National Cadastre of National Secretariats National City Councils:
of Housing: Formulate
Properties of the Union Rural Properties (CNIR) of Housing: Formulate formulation + monitoring
+ implement housing
+ Implementing of urban land policies
policies, + slum
housing policies, +
upgrading programmes
slum upgrading
programes
of interest to the states and the municipalities such as the ,QVWLWXWHIRU8UEDQ5LJKWV+RZHYHUPRVWRI WKHPHQGRUVH
possession and ownership of public lands, each comarca has a WKHLGHDWKDWFRQÁLFWVDERXWKRXVLQJULJKWVSRVVHVVLRQDQG
public affairs jurisdiction. ownership of urban or rural land, should go through new,
LQVWLWXWLRQDODOWHUQDWLYH PHWKRGV RI QHJRWLDWLRQ PHGLDWLRQ
The structure and operation of the judiciary in the states has and resolution, such as committees or councils of justice;
QRW EHHQ DGHTXDWH LQ WKH UHVROXWLRQ RI GLVSXWHV UHODWHG WR and the creation of neighbourhood and district courts.
housing, inheritance of urban land, the right of possession
and ownership of formal and irregular settlements, and the At state level the role of the General Inspector of Internal
collective occupation of land organised by popular action Justice Affairs is of cardinal importance. Although each State
PRYHPHQWV &RPSOH[ PDWWHUV LQYROYLQJ SRVVHVVLRQ DQG Court has jurisdiction, they operate through special regula-
housing rights for socially vulnerable groups are also often tions called SURYLPHQWRV approved by the General Inspector.
settled unsatisfactorily or not at all, particularly where such Through these special regulations the state judiciary can es-
ULJKWVFRQÁLFWZLWKODUJHVFDOHGHYHORSPHQWSURMHFWVVXFKDV tablish the procedures to register the tenure of the urban and
WKHFRQVWUXFWLRQRI K\GURHOHFWULFSRZHUVWDWLRQVWKHH[WHQ- UXUDOODQGDQGSURSHUWLHV)RUH[DPSOHWKH\FDQGHWHUPLQH
sion of airports or the revitalisation of deteriorated historic that the cost of registration is free for areas regularised by
centres. public programmes of land regularisation.
)LJXUH)RFDOSRLQWVRI VWDWHODQGPDQDJHPHQW
State courts
Secretary or Secretary Secretary or Land and
Department of Justice Department of Housing
of Agrarian Department of Urban Devlopmt. Public General Inspector of Internal Justice
Development Public Assets or Housing Companies Affair: Inspects, disciplines and
provides administrative orientation
of criteria and procedures of the
Public Registries. Approves special
Land Institute(in regulations (Provimentos) on land
some states)including registration.
cartographical services
Comarcas Public
Registry Affairs
Jurisdictions
)HGHUDO ODZ FRQWDLQV JHQHUDO UXOHV RQ UHJLVWUDWLRQ RI GLIIHUHQW NLQGV RI SURSHUW\ WHQXUH 7KLV ODZ LV PDQGDWRU\
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RUJDQLVDWLRQRI WKHVWDWHMXGLFLDU\GHÀQHVWKHRUJDQLVDWLRQDQGWKHWHUULWRULDOMXULVGLFWLRQRI WKHSXEOLFUHJLVWU\SURSHUW\RIÀFHV
are rarely used for urban control. In many cases the record 4 Nat ional Development Plan
ÀOHRI WKHSURSHUW\RI WKHPXQLFLSDOLW\LQFOXGHVWKHUHVLGHQWV
OLYLQJ LQ LQIRUPDO VHWWOHPHQWV IRU WD[ SXUSRVHV 7KH UHJLV- %UD]LO GRHV QRW KDYH D 3RYHUW\ 5HGXFWLRQ 6WUDWHJ\ 3ODQ
tration of the residents is not related to the regularisation WR FRPEDW SRYHUW\ DQG VRFLDO LQHTXDOLW\ DORQJ WKH OLQHV
process of the informal settlement. SURSRVHG E\ WKH :RUOG %DQN ,QVWHDG VXFK VWUDWHJLHV DUH
included in the Multiannual Plan proposed for the period
There are differences between these records and the federal E\WKHJRYHUQPHQW0LQLVWU\RI 3ODQQLQJFDOOHG
and state records where lands are contiguous or overlap, and ´%UD]LO ² $ 3URJUDPPH IRU $OOµ 7KH 0XOWLDQQXDO 3ODQ LQ
these have to be resolved. accordance with the Constitution, is a planning instrument
that establishes the objectives and goals of the public federal
3.5 Most relevant jurisprudence DGPLQLVWUDWLRQRQDUHJLRQDOEDVLVDQGGHÀQHVDEXGJHWDQG
other matters relevant to programmes of such long duration.
Some courts have made relevant decisions on the land regu- Many civil society organisations were consulted during the
larisation of formal and informal urban settlements. In 2000, formulation of this plan, which in the areas of urban and
WKH FRXUW RI WKH VWDWH RI 5LR *UDQGH GR 6XO XQDQLPRXVO\ housing policy emphasises the following:
accepted special urban adverse possession in the following v Strengthen the urban municipal management by train-
VHQWHQFH´&RQVLGHULQJ WKDWDOOUHTXLUHPHQWVZHUHPHWDQG ing courses and seminars;
that all the neighbours were cited and no objection to the v 5HJXODULVHDQGLQWHJUDWHDOOSUHFDULRXVLQIRUPDOVHWWOH-
formalisation of the possession was made; the prime own- ments and upgrade the slums and tenements;
HUVKLS PD\ EH UHJLVWHUHG LQ WKH 5HJLVWU\ RI 3URSHUW\ DQG v &RQVWUXFWVXIÀFLHQWKRXVLQJRI VRFLDOLQWHUHVW
WKH SODLQWLII ·V SRVVHVVLRQ PD\ EH GXO\ FRQÀUPHGµ 147 In v 2UJDQLVHSURFHGXUHIRUKRPHÀQDQFLQJDQG
2003, the same court decided favourably on the procedure
v 5HKDELOLWDWHWKHFHQWUDOXUEDQDUHDV
of property regularisation by considering an irregular land
DOORWPHQW DQGRU GLYLVLRQ DV D ´VLWXDWLRQ RI LUUHYHUVLEOH As for the policies on rural areas, considerable emphasis
IDFWµ7KHMXVWLÀFDWLRQIRUWKHGHFLVLRQZDVWKHIDFWWKDWWKH has been laid on family farming through the Programme
location had a public water system, sewage networks, streets, RQ )DPLO\ )DUPLQJ 7KH SODQ DOVR SUHVHQWV SURJUDPPHV
HOHFWULFLW\HWFDVZHOODVVRPHSURSHUWLHVDOUHDG\SD\LQJWD[HV LQ 6XVWDLQDEOH 'HYHORSPHQW RI 5XUDO $UHDV 6XVWDLQDEOH
to the municipality. Based on the constitutional principles 6HWWOHPHQWVIRU5XUDO:RUNHUVDQG/DQG&UHGLW
of the social function of property and access to the courts,
WKH $GPLQLVWUDWLYH 3URYLVLRQ QR FDOOHG ´0RUH /HJDO The matter of gender is approached in a singular manner
II” was applied by the General Inspector of Internal Justice LQ WKH SODQ EHFDXVH LW FRQWDLQV VSHFLÀF SXEOLF SROLFLHV IRU
$IIDLUVLQDZD\WKDWVLPSOLÀHGWKHUHJXODULVDWLRQSURFHVVIRU eliminating discrimination against women. The following
these properties. 148 SURJUDPPHVDUHSUHVHQWHGWKH&RPEDWRI 9LROHQFHDJDLQVW
:RPHQSURJUDPPHZKLFKZLOOWDUJHWWKHV\VWHPDWLFSUHYHQ-
tion of different forms of discrimination and violence; the
Management of Gender Policies programme, which aims at
WKHSODQQLQJH[HFXWLRQDQGHYDOXDWLRQRI SURMHFWVUHODWHGWR
147 Court of Rio Grande do Sul; Civil Appeal no. 70000063826, twentieth Civil WKHDFKLHYHPHQWRI JHQGHUHTXDOLW\DQGWKH*HQGHU(TXDOLW\
Chamber; court reporter: Rubem Duarte, decreed on November 8 2000. Circuit Court
of origin: Porto Alegre.
148 Court of Rio Grande do Sul, 20th Civil Chamber, Civil Appellation no. 70,003,865,086,
FRXUWUHSRUWHU-RVp&RQUDGRGH6RX]D-~QLRUGHFUHHGRQ2FWREHU
Under President Lula da Silva, the Ministry of the City and the 5.2 The National City System
1DWLRQDO&RXQFLORI WKH&LW\DUHFRQVLGHULQJWKHIRUPXODWLRQ
RI DQDGHTXDWHQDWLRQDOODQGDQGKRXVLQJSROLF\LQWHJUDWLQJ The City Statute establishes a new chapter in the democratic
the management of land by the many ministries and institu- PDQDJHPHQWRI WKHFLW\DQGGHÀQHVWKHXUEDQSROLF\FRXQFLOV
tions that deal with indigenous land policies, rural lands for and urban conferences as democratic management tools. 149
agrarian reform, and quilombo communities. The adoption of
such policies is necessary considering that Brazil is a large To implement the City Statute, the Ministry of the Cities
FRXQWU\ZLWKUHJLRQDOVSHFLÀFLWLHVVSUHDGDFURVVVWDWHVDQG FRQVLGHUHG D SURSRVDO IURP WKH 1DWLRQDO )RUXP RI 8UEDQ
more than 5,000 municipalities. 5HIRUPZKLFKFDOOHGIRUDFRQIHUHQFHWRGUDZXSWKHFRQ-
VWLWXWLRQ RI WKH 1DWLRQDO &RXQFLO RI WKH &LW\ 150 The basis
The government introduced an important measure concern- for establishing this body was derived from the system of
ing urban land and housing policies by creating the Ministry direct democracy and the principle of popular participation
of Cities in January 2003. This Ministry is responsible for enshrined in the Constitution.
formulating and adopting national urban policies on hous-
ing, sanitation and public transportation development. It will After several preparatory city conferences in states and
coordinate activities of the union, the states and the munici- PXQLFLSDOLWLHV WKH ÀUVW 1DWLRQDO &LW\ &RQIHUHQFH ZDV KHOG
palities for the implementation of these policies, but in such
D ZD\ WKDW LPSRUWDQW DQG UHOHYDQW H[SHULHQFHV GHYHORSHG 149 See Provisional Measure 2220/2001.
locally or regionally are taken into account. 150 The councils and conferences as instruments of democratic management
are foreseen in Art. 43 (I) and (III) of the City Statute. The National Council of Urban
Development appears in Art. 10 of Provisional Measure 2220/2001 although the name
was altered by the Provisional Measure that created the Ministry of the City. Federal
Decree 5.031/2004 regulates the National Council of the City.
in October 2003. 151 Conference participants formulated the accompany and evaluate the implementation of the policies
guidelines and priorities for the management of urban poli- regarding housing, basic sanitation and urban transport; and
cies in accordance with the City Statute. The main outcome provide guidelines and recommendations for the application
ZDVWKHHOHFWLRQRI FRXQFLOORUVIRUWKH1DWLRQDO&RXQFLORI RI WKH&LW\6WDWXWH7KH1DWLRQDO&RXQFLORI WKH&LW\ZKHQ
WKH&LW\7KH1DWLRQDO&RXQFLORI WKH&LW\LVFRPSRVHGRI dealing with land use planning, has an enormous potential
PHPEHUVIURPWKHIHGHUDOSXEOLFDGPLQLVWUDWLRQPLQ- for formulating urban housing and land policies that take
LVWULHV IURP WKH VWDWH SXEOLF DGPLQLVWUDWLRQ DQG )HGHUDO into account the diversity of use and occupation of land for
District, or entities of civil society organised in the state area; urban and rural purposes.
10 from the municipal public administration or entities of
civil society organised in the municipal area; 19 from popular 7KH1DWLRQDO/DQG8VH3ODQZKLFKFRYHUVWKHGLYHUVHIRUPV
movement organisations; 7 from the private sector; 7 from of urban and rural land occupation, is the instrument that the
labour organisations; 5 from entities in professional, aca- government may use to formulate an integrated land policy.
GHPLFDQGUHVHDUFKDUHDVDQGIURP1*2V 152 The table 5HJLRQDOODQGXVHSODQVDVZHOODVSODQVIRUHFRQRPLFDQG
below indicates the participation of women in the council. social development, can also be used. Although there are no
regional jurisdictions, the development of regional plans is
7DEOH:RPHQ·VUHSUHVHQWDWLRQLQWKH1DWLRQDO&RXQFLORI necessary in order to reduce social and economic disparities.
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Social Sectors % of women Number The responsibility for the elaboration of these plans lies
of ZLWK WKH 0LQLVWU\ RI 5HJLRQDO ,QWHJUDWLRQ 7KH 1DWLRQDO
women DQG5HJLRQDO/DQG8VH3ODQVFDQEHLPSRUWDQWLQVWUXPHQWV
out of
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total
Federal public power 14,3 2 (14) System.
State public power and Federal 16,6 1 (6)
District $ORQJ ZLWK WKH HVWDEOLVKPHQW RI WKH 1DWLRQDO &RXQFLO RI
Municipal public power 10,0 1 (10) WKH &LW\ IHGHUDO FRXQFLOV KDYH EHHQ HVWDEOLVKHG RQ VSHFLÀF
Popular Movement Organisation 21,0 4 (19) matters such as environment, health, social assistance, edu-
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states and municipalities. The national, state and municipal
7KH1DWLRQDO&RXQFLORI WKH&LW\LVDGHOLEHUDWLYHDQGFRQ- funds related to urban development, housing, sanitation and
sultative body with responsibilities to propose guidelines, WUDQVSRUWPXVWEHLQWHJUDWHGLQWKH1DWLRQDO&LW\6\VWHP7KH
instruments, norms and priorities for the formulation and legal instruments, such as the City Statute at national level
implementation of national urban development policies; and the master plans in the local level, must be integrated
151 3,457 municipal Conferences were held, as were 27 state conferences. There
was adequate social mobilisation with approximately 320,000 participants, who elected
2,500 delegates for the National City Conference.
152 The National Conference of the Cities decided to make a distinction between the
1*2VDQGWKHSURIHVVLRQDODQGDFDGHPLFHQWLWLHVVXFKDVXQLYHUVLWLHV
into this national system, as well as the national, state and The Habitar Brasil Programme seeks to further the efforts of
municipal programmes dealing with these policies. municipal governments to eradicate or improve informal set-
tlements such as slums and tenements. The main objectives
,PSOHPHQWDWLRQ RI WKH 1DWLRQDO &LW\ 6\VWHP LV VWUDWHJLF are to make these areas more habitable and healthy and to
for the application of the new urban legal order, as well as improve the standard of living without removing the people
programmes addressing the regularisation of informal set- from the city areas where they provide many services and
tlements. earn a livelihood. Most of these projects are also directed to
the less than three minimum salary segment of the popula-
5.3 The national social housing system tion and have had considerable success: in 2003, of a much
larger number of properly prepared and solidly based plans
Federal housing programmes VXEPLWWHGE\PXQLFLSDOLWLHVDQGWKH)HGHUDO'LVWULFWWR
The Ministry of Cities runs various social housing programmes the programme, 132 were approved and 104 are in active
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including the provision of land for housing and smallhold-
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tion of economical housing and infrastructure improvement; RI WKH)DYHODGR*DWRLQ6mR3DXOR7KLVfavelaKDVH[LVWHG
E SURJUDPPHV RQ UHJXODULVDWLRQ RI LQIRUPDO VHWWOHPHQWV IRURYHU\HDUVRQWKHEDQNVRI WKH5LR7DPDQGXDWHLDQG
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programmes controlled by the federal Programme for Social In the Habitar Brasil Programme project, 150 families who
+RXVLQJDQGLQDGGLWLRQWRÀQDQFLQJVHOIKHOSDQGFRRSHUD- worked collecting trash and delivering it to the local process-
tive construction, they seek to give some priority to women ing station did not have regular guaranteed income although
heads of household, to families with the lowest income, they were usually able to support their families through their
and to the rural and poor urban population. There is also work. An area for income-producing work associated with
a low-cost credit aid programme directed at family groups the collection of recyclable trash was also constructed nearby
organised into formal cooperatives or housing associations, so that the workers could make more money from their daily
ZKHUHWKHPHPEHUV·LQFRPHUDQJHVIURP]HURWRWKUHHWLPHV work
the present minimum wage.
However, the current challenge is how to guarantee that suf-
7KH8SJUDGLQJ5HJXODULVDWLRQDQG,QWHJUDWLRQRI 3UHFDULRXV ÀFLHQWUHVRXUFHVZLOOEHDYDLODEOHIRUWKHVHSURJUDPPHVDQG
Settlements Programme is aimed at implementing regularisa- KRZWRHQVXUHWKDWZKDWLVDYDLODEOHZLOOEHDGHTXDWHO\DQG
tion of slums, land subdivisions and public housing develop- economically applied in the states and municipalities in spite
ments. The programme is developed through a partnership RI UHJLRQDODQGVRFLDOLQHTXDOLWLHV7KHPDLQIXQGLQJFRPHV
between the Ministry of the City and the municipalities in IURP WKH :RUNHUV *XDUDQWHH IRU 7LPH RI 6HUYLFH )XQG
particular. Moreover, there are partnerships to develop the )*76DSHQVLRQIXQGGHULYHGIURPFRQWULEXWLRQVSDLGE\
SURJUDPPHZLWK$125(*DQG,5,%WRDVVXUHWKHIUHHUHJ- the workers and their employees in the formal job market.
istration of the title in the register and to simplify the process.
,QWKH1DWLRQDO6HFUHWDU\RI 8UEDQ3URJUDPPHVWUDQV-
ferred U$ 1.5 million to support the regularisation of the land
in 126 informal settlements in 49 municipalities in 17 states.
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democratic and decentralised system, as it establishes the ob- number of human rights. Article 5 recognises that all persons
ligation on states and municipalities to constitute their own DUHHTXDOEHIRUHWKHODZ,WVÀUVWSDUDJUDSKH[SOLFLWO\VWDWHV
housing funds and councils before they can receive resources WKDWPHQDQGZRPHQKDYHHTXDOULJKWVDQGGXWLHVXQGHUWKH
IURP WKH1DWLRQDO 3RSXODU +RXVLQJ )XQG7R XWLOLVHWKRVH terms of this Constitution although the Constitution itself is
resources the states and municipalities must develop housing written in gender-biased language 154.
polices to be implemented by housing secretariats or public
companies, community organisations, resident associations 7KH ULJKW WR LQKHULWDQFH LV JXDUDQWHHG $UW SDUDJUDSK
or cooperatives. ;;;,QYLHZRI WKHUHFRJQLWLRQRI HTXDOULJKWVIRUPHQ
DQGZRPHQWKLVLPSOLHVHTXDOLQKHULWDQFHULJKWVIRUZLGRZ-
HUVDQGZLGRZV$UWLFOH;;;SURKLELWVDQ\GLIIHUHQFHLQ
153 Bill of Law no. 2,710/92, and in the Senate its number was PLC 0036/2004. As of 154 Art. 201(7) of the same Constitution, however, contradicts Art. 5 by stipulating
June 2005, this is Federal Law no. 11.124/2005. different retirement ages for men and for women.
wages, in the performance of duties and hiring criteria, on land. To this end, the municipality may apply the instruments
WKHEDVLVRI VH[DJHFRORXURUPDULWDOVWDWXV of subdivision, construction or compulsory use, property
WD[HV LQFUHDVLQJ SURJUHVVLYHO\ RYHU WLPH DQG WKH H[SURSULD-
$UWLFOH VWLSXODWHV WKDW PDUULDJH LV FLYLO DQG WKDW WKH tion of property for purposes of urban reform as a form of
marriage ceremony is free of charge. 155 The stable union JXDUDQWHH WKDW WKH XUEDQ SURSHUW\ ZLOO IXOÀO LWV VRFLDO IXQF-
between a man and woman is recognised as a family entity. A tion.
civil marriage may be dissolved after legal separation of over
a year, or after de facto separation of two years. 156:KLOHWKH Article 6 recognises the right to housing as a fundamental
ULJKWV DQG WKH GXWLHV RI PDULWDO VRFLHW\ ´VKDOO EH H[HUFLVHG right. In accordance with this the following are social rights:
HTXDOO\E\WKHPDQDQGWKHZRPDQµQRH[SOLFLWSURYLVLRQLV education, health, employment, housing, leisure, security,
LQFOXGHGIRUHTXDOPDULWDOSURSHUW\ULJKWV social security, maternity and childhood protection and as-
sistance for the helpless. 159 Linked to the protection of
$UWLFOH;UHFRJQLVHVWKHLQYLRODEOHULJKWWRSULYDF\DQGWR housing rights are the inviolable rights of the home, the right
compensation for property damages. The right to property to information and the provision of full and free-of-charge
is recognised as a fundamental right as long as the property OHJDODVVLVWDQFHE\WKHVWDWHWRDOOZKRSURYHLQVXIÀFLHQF\RI
IXOÀOV LWV VRFLDO IXQFWLRQ 157 7KH ODZ FDQ SURYLGH IRU DQ H[- funds. 160
propriation procedure for public necessity or social interest,
EXW IDLU FRPSHQVDWLRQ PXVW EH SDLG LQ FDVH RI H[SURSULD- 7KH VWDWH·V REOLJDWLRQ WR SURWHFW KRXVLQJ ULJKWV LPSOLHV WKH
tion. 158 However, there are no provisions on evictions in the implementation of housing construction programmes and
Constitution. the improvement of housing and basic sanitation conditions,
as well as the social integration of the disadvantaged. 161 The
'XH WR WKH HIIRUWV RI WKH 1DWLRQDO 0RYHPHQW RI 8UEDQ housing rights of the Afro-Brazilian populations in the cities
5HIRUP WR GUDIW WKH 3RSXODU 8UEDQ 5HIRUP $PHQGPHQW must be considered as cultural rights and suitably protected.
D VSHFLÀF &KDSWHU RQ 8UEDQ 3ROLF\ ZDV LQFOXGHG LQ WKH In accordance with Art. 216, the Brazilian cultural heritage
Constitution. This chapter emphasises the full development consists of assets of material and immaterial nature, taken
of the social functions of the city, which must be at the core individually or as a whole, which bear reference to the identity,
of urban development policy. The municipality is responsible the action and the memory of the various groups forming
for the implementation of urban development policies, in society. Among these are the ways of life and the urban col-
accordance with the general guidelines of the federal City lectives and places of historical, aesthetic and artistic value.
Statute. Every city of over 20,000 inhabitants must have a
master plan, which is the basic tool of the urban development Therefore, the public administration must protect those vil-
policy. Prior and fair compensation in cash must be provided lages, housing collectives and neighbourhoods with a high
LQFDVHRI H[SURSULDWLRQRI XUEDQSURSHUW\,QFHUWDLQFDVHV concentration of Afro-Brazilian populations having charac-
WKHPXQLFLSDOJRYHUQPHQWPD\E\PHDQVRI DVSHFLÀFODZ WHULVWLFVRI KLVWRULFDOYDOXHIRUH[DPSOHWKHKLVWRULFDOFHQWUH
and according to the City Statute, demand from an owner of LQWKHFLW\RI 6DOYDGRU3HORXULQKRDQGWKHVOXPVLQWKHKLOOV
vacant, underused or unused urban land in an area included RI WKHVRXWKHUQ]RQHVLQ5LRGH-DQHLUR$PRQJWKHPHWKRGV
LQWKHPDVWHUSODQWKDWVKHSURYLGHIRUDGHTXDWHXVHRI WKLV of providing such protection are the prevention of eviction
155 Art. 226 is laid down in Chapter VII on Family, Children, Adolescents and the
(OGHUO\ZKLFKLVLQWXUQSDUWRI7LWOH9,,,RQWKH6RFLDO2UGHU
159 The right to housing was included in the Constitution as a fundamental right by
156 Art. 226 (6). Constitutional Amendment no. 26 of 14-2-2000.
157 Art. 5(XXII) and (XXIII). 160 Art. 5 (X), (XXXIII) and (LXXIV).
RU H[SXOVLRQ RI $IUR%UD]LOLDQ FRPPXQLWLHV DQG JXDUGLQJ new civil code recognises that marriage is constituted based
the housing and cultural rights of these communities. 162 RQWKHHTXDOLW\RI WKHULJKWVDQGGXWLHVRI ERWKVSRXVHV$UW
The rights of traditional Afro-Brazilian populations to their
lands is laid down in Art. 68 of the Transitory Constitutional :LWKUHODWLRQWRWKHRZQHUVKLSRI SURSHUW\RI VXFKDXQLRQ
Dispositions as follows: “those descendants of the quilombo HTXDOLW\EHWZHHQPHQDQGZRPHQLVDVVXUHGLQWKHDFTXLVL-
communities now in occupation of the traditional quilombo tion, management and administration of goods brought
ODQGVDUHKHUHE\UHFRJQLVHGDVWKHGHÀQLWLYHRZQHUVRI WKHVH LQWRWKHXQLRQRUDFTXLUHGDIWHUWKHIRUPDWLRQRI WKHIDPLO\
lands, and the state has an obligation to issue titles to those $UW 166 7KH IRUP RI WKLV HTXDOLW\ LV HVWDEOLVKHG DW
occupiers”. 163 the moment of initial permanent union of the couple. At
that time they may elect, in writing, to hold all or some of
Article 231 recognises the rights of the indigenous popula- their property jointly or separately, but if they do not so elect,
tion to maintain their social organisation, customs, languages, WKHFLYLOFRGH$UW²SUHVXPHVWKDWWKHXQLRQLV
beliefs and traditions, as well as their original rights to the organised in a system of partial community of property.
lands they traditionally occupy. The union is responsible for
the demarcation of these lands, and to protect and ensure However, whatever form the union presents, both the man
respect for all of their property. and the woman may freely administer their own properties
WKDWLVWKRVHWKDWHDFKEURXJKWWRWKHXQLRQDQGPD\QHJDWH
6.2 The civil code mortgages or commitments which may have been made on
their property without their consent even if a legal sentence
In 2002 a new civil code was promulgated that deals with LVLQYROYHG$UW,I VRPHMRLQWDVVHWLVWREHVROGRU
family rights, inheritance rights, possession and property otherwise disposed of, neither party of the union can act
rights. 164:KLOHWKHSUHYLRXVFLYLOFRGHRI UHIHUUHGWRD ZLWKRXWWKHFRQVHQWRI WKHRWKHUH[FHSWZKHUHWKHIRUPRI
person as a “man”, the new code employs the word “person”. the marriage or stable union has been agreed in the begin-
7KHH[SUHVVLRQ´SDWHUQDOSRZHUµZDVDOVRUHSODFHGE\´IDP- ning as one of total separation of the assets. Only a judge
ily power”. 165 'XULQJ PDUULDJH DQGRU VWDEOH XQLRQ ERWK can authorise the disposal of an asset of a marriage or stable
SDUHQWVH[HUFLVHWKHIDPLO\SRZHU:KHUHRQHSDUHQWLVQRW union if one of the partners refuses to consent to a legitimate
DYDLODEOHRUDEOHWRH[HUFLVHWKLVIDPLO\SRZHUWKHRWKHUZLOO operation desired by the other without a sound reason or if it
H[HUFLVHLWH[FOXVLYHO\$UW7KH&RQVWLWXWLRQGHÀQHV SURYHVLPSRVVLEOHWRORFDWHKLPKHU$UW
the family entity as a community formed by either of the par-
ents and their descendants. This means that a family formed Similarly in regard to rights of inheritance in the case of the
RQO\ E\ ZRPHQ PRWKHU DQG GDXJKWHUV RU RQO\ RI PHQ death of one of the partners of a marriage or stable relation-
IDWKHUVDQGVRQVLVOHJDOO\UHFRJQLVHGDVDIDPLO\XQLW7KH VKLSZRPHQDQGPHQKDYHHTXDOULJKWVLQREWDLQLQJDVVHWV
162 Protection of cultural rights also includes the prevention of damage to homes and whether by being the legitimate heir or by a will or testament.
buildings that represent the memory and identity of these communities. Examples are
the spaces destined for manifestations of the popular cultures of Afro-Brazilians, such
Art. 1.829 of the civil code, however, sets out the preferential
as the areas set aside for dances and samba groups and the traditional places of Afro- order of transfer of the inheritance:
Brazilian religious cults such as candomblé. To protect these cultural rights, the public
administration, with the collaboration of the community, may utilise the instruments of 7RWKHGLUHFWGHVFHQGDQWVVRQVDQGGDXJKWHUVDQGWKH
inventory, registry, vigilance, recording and dispossession. The municipality must include
in the master plan provision for safeguarding the housing rights of these communities. VXUYLYLQJSDUWQHULQHTXDOSRUWLRQVH[FHSWLI WKHODWWHU
163 The rule on the right of the land to the quilombolas is transitory, related to the period was married under the regime of universal community
in which the government provides the titles of the lands to all quilombolas communities.
165 Art. 1630-1638 et seq. 166 Art. 1642. See Zavascki, T. A. (2002:850).
of property, or if the assets are to be separated in ac- The civil code deals with the regime of possession and own-
cordance with a valid last will and testament; 167
HUVKLS$GYHUVHSRVVHVVLRQLVFRQVLGHUHGDIRUPRI DFTXLULQJ
7R WKH DVFHQGDQWV IDWKHUV DQG PRWKHUV DQG WKH VXU- SURSHUW\EXW$UWUHTXLUHVWKDWVXFKULJKWVDUHDFTXLUHG
YLYLQJSDUWQHULQHTXDOSRUWLRQVDQG
only after uninterrupted and undisputed occupation for at
1HDUHVWQH[WRI NLQ7KHVH[RI WKHVXUYLYLQJSDUWQHU least 15 years. Special adverse possession conditions for
RI VXFKDXQLRQGRHVQRWLQÁXHQFHWKHRXWFRPH UXUDO ODQGV DUH GHÀQHG LQ $UW DQG IRU XUEDQ DGYHUVH
7KHFLYLOFRGHDVVXUHVWKHVXUYLYLQJVSRXVHPDQRUZRPDQ possession by Art. 1240, which follows Art. 183 of the
regardless of the marital property regime, the real right of Constitution.
habitation of the family home, provided it is the only asset in
WKHUHVLGXDOLQYHQWRU\$UW+DELWDWLRQLVWKHWHPSRUDU\ One of the problems with the present civil code is that it
real right to freely occupy a house belonging to third parties does not provide protection of the right to housing in the
DQGLVDWWULEXWHGWRWKHEHQHÀFLDU\RI WKLVULJKWDQGKLVKHU same way as it does the protection of rights of possession
family. The object of the real right of habitation must be a and property ownership. In this sense, a better approach
EXLOGLQJKRXVHDSDUWPHQWHWFWREHXVHGH[FOXVLYHO\DVD would be to give precedence to the norms for the protection
residence for the family and may not be used for any other of the right of housing laid down in the City Statute over
purpose. This right may not be sold or rented out. Thus, the those of the civil code.
LQKHULWRU FDQ XVH VXFK D EXLOGLQJ RQO\ DV KLVKHU UHVLGHQFH
ZLWKKLVIDPLO\LI DQ\ 6.3 Federal land laws
The main obstacle for legal recognition of the inheritance by Division of urban land: Law no. 6,766
DPDQRUZRPDQRI UHDOULJKWVRYHUDQDVVHWKRXVHORWODQG of 1979 amended by 9,785 of 1999
LQ DQ LQIRUPDO VHWWOHPHQW LV WKH LUUHJXODU RU QRQH[LVWHQW This law regulates the division of urban land into allotments
registration of the property. Land regularisation programmes or building sites, as well as the establishment of urban stand-
for such settlements and the provision of free legal assist- DUGVDQGUHTXLUHPHQWVIRUDGHTXDWHO\FUHDWLQJVXFKGLYLVLRQV
ance services are the two main measures that should be taken 6XFK VWDQGDUGV DQG UHTXLUHPHQWV LQFOXGH WKH PLQLPXP
to consolidate the inheritance rights of people in informal acceptable infrastructure, the highway system, urban and
settlements. Courts must also alter their traditional positions community services, uses of public areas; the responsibilities
to permit the transfer of ownership or possession to the RI SULYDWHSDUWLHVODQGRZQHUVHQWUHSUHQHXUVDQGWKHSXEOLF
survivor, notwithstanding the irregular situation of the land, DXWKRULWLHVDQGWKHGHÀQLWLRQRI XUEDQFULPHV
and to authorise the recognition of these inheritance rights
by the public registrars. 8UEDQGLYLVLRQVDUHFODVVLÀHGDV
v 5HJXODUGLYLVLRQV²WKRVHLQFRQIRUPLW\ZLWKWKHOHJLV-
Some cases have occasionally occurred where, in situations lation;
RI GRPHVWLFFRQÁLFWZRPHQWKUHDWHQHGE\RUVXEMHFWHGWR v ,UUHJXODU GLYLVLRQV ² WKRVH WKDW DUH LUUHJXODU EHFDXVH
GRPHVWLF YLROHQFH KDYH FHGHG WKH IDPLO\ SURSHUW\ 1*2V they infringe municipal urban standards, or there is an
legal assistance centres and public organisations specialising absence of infrastructure and public areas, or they do
in combating domestic violence have played an important QRWPHHWWKHOHJDOUHTXLUHPHQWVIRUUHJLVWUDWLRQLQWKH
UROHLQWKHGHIHQFHRI ZRPHQ·VSURSHUW\ULJKWVLQVXFKFDVHV public register; and
167 The proportion of the division of the assets is equal between direct descendants
and the surviving partner. Among related ascendants and the surviving partner the
proportion is also equal.
v &ODQGHVWLQH GLYLVLRQV ² 7KRVH GHYHORSHG ZLWKRXW DS- aspects and registered in the property registry. However, this
proval from the municipality although the municipality is seen as a provisional measure to alleviate an unacceptable
has not taken action against them.
H[LVWLQJVLWXDWLRQDQGGRHVQRWUHOHDVHWKHJRYHUQPHQWIURP
An amendment made in 1999 to Law this law provides legal later bringing the provisional urban infrastructure up to
instruments to protect the right to housing and strengthen standard.
tenure security. It permits the regularisation of irregular al-
ORWPHQWVGHYHORSHGLQDUHDVH[SURSULDWHGE\WKHJRYHUQPHQW The Land Statute Law no. 4,504 of 1964
to house low-income population, by means of the transfer The Land Statute regulates “the rights and obligations
RI SRVVHVVLRQWRWKHUHVLGHQWVDQGVXEVHTXHQWUHJLVWUDWLRQLQ concerning rural property assets for the purposes of imple-
the public register. 168 PHQWLQJ$JUDULDQ5HIRUPDQG$JULFXOWXUDO3ROLFLHVµ$UW
Agrarian reform is understood as a “collection of measures
Article 2 of the amended law also amends Art. 167 of the that aim to promote a better distribution of land by modify-
/DZRQ3XEOLF5HJLVWULHV)HGHUDO/DZDQGDOORZV ing the traditional regime of possession and use in order to
the registration of temporary possession conceded by the better attend the principles of social justice and obtain an
XQLRQ WKH VWDWH RU PXQLFLSDOLWLHV LQ H[SURSULDWLRQ SURF- LQFUHDVH LQ ODQG SURGXFWLYLW\µ SDUDJUDSK 7KH ODZ DOVR
esses, directly or by the respective institutions responsible for proposes to assure the opportunity of property access to all,
implementing housing reform for the lower-income classes. XQGHUWKHFRQGLWLRQRI WKHIXOÀOPHQWRI ODQG·VVRFLDOIXQF-
These amendments allow the government to register such ar- WLRQ$UW
rangements without having all the ownership titles normally
UHTXLUHG²RQO\WKHH[SURSULDWLRQGRFXPHQWUHIHUULQJWRWKH $FFRUGLQJWR$UWRI WKH/DQG6WDWXWHWKHODQGH[SURSUL-
respective temporary possession is needed. In this case, the ated for agrarian reform purposes must be distributed by
law also permits that the actual transfer of possession to ,1&5$LQWKHIRUPRI IDPLO\RZQHUVKLS$UWLFOHRI WKH
WKHEHQHÀFLDULHVEHGRQHE\GHHG2QFHWKHSURFHVVLVFRP- &RQVWLWXWLRQVWLSXODWHVWKDWWKHEHQHÀFLDULHVRI GLVWULEXWLRQ
SOHWHG WKH EHQHÀFLDU\ FDQ XVH WKH SRVVHVVLRQ GRFXPHQW DV of rural land through agrarian reform shall receive title deeds
FROODWHUDOWRREWDLQÀQDQFLQJWRLPSURYHRUFRQVWUXFWKLVKHU or concessions of use. These titles shall be granted to the man
UHVLGHQFHDQGWKHODZUHTXLUHVEDQNVDQGEXLOGLQJVRFLHWLHV or woman, or to both, irrespective of their marital status.
to accept this document in the same way as the traditional
home ownership title has been accepted. The Constitution dedicates a complete chapter to the matter
of agrarian reform, and states that, all other options having
Article 3 of the new law provides for the creation of the IDLOHG WKH VWDWH VKDOO H[SURSULDWH UXUDO SURSHUWLHV IRXQG WR
aforementioned ZEIS as another instrument for land regu- EH XQSURGXFWLYH E\ LPSDUWLDO H[SHUWV ([SURSULDWLRQ PXVW
larisation. ZEIS are usually in areas with large concentrations be accompanied by payment of prior and fair compensation
of irregular settlements, where the municipality is engaged to the proprietor by the means of agrarian debt bonds, the
in, or plans, projects of urban improvement. This makes it form of which preserves the real price of the land during the
possible to establish special rules for division, usage, con- bond term.
struction and occupation for land regularisation.
One of the problems impeding the full implementation of
According to Art. 53, collective housing constructed by the the agrarian reform process is the precise meaning of the
government without attending all the legal and upgrading term “productive land” and it has been left to the judiciary to
UHTXLUHPHQWV FDQ EH UHJXODULVHG LQ ERWK XUEDQ DQG OHJDO apply the basic principle of the social function of rural prop-
168 As well as modifying Law no. 6,766/79, the respective federal laws on public erty to resolve disputes on whether a particular property is
registries and on expropriation in the public interest were also amended.
or is not productive. Such decisions are not only complicated v 3URSHUWLHVRI VSHFLDOXVHKRVSLWDOVEXLOGLQJVIRUSXE-
E\WKHODFNRI GHÀQLWLRQLQWKHFRQVWLWXWLRQDOWHUPEXWPD\ lic organisations, schools, etc., which are used for the
LPSOHPHQWDWLRQRI SXEOLFVHUYLFHVLQJHQHUDODQG
DOVR LQYROYH TXHVWLRQV RI WKH SUHVHUYDWLRQ RI WKH HQYLURQ-
PHQW)XUWKHUPRUHOHJDOFKDOOHQJHVWRWKHGLIIHULQJUROHVRI v 3URSHUWLHVRI GRPLQLXPDVVHWVEHORQJLQJWRWKHSXEOLF
administration and over which it has powers of own-
WKHXQLRQWKHVWDWHDQGWKHPXQLFLSDOLW\DVUHJDUGVWKHÀQDO
ership and therefore can be freely utilised, and even
MXULVGLFWLRQ RIWHQ GHOD\ HYHQ WKH VWDUW RI DQ H[SURSULDWLRQ
DOLHQDWHGRUOHDVHGE\WKHSXEOLFDGPLQLVWUDWLRQ
process.
The Law on Union Land aims especially at the regularisa-
)XUWKHUPRUH WKH YDOLGLW\ RI PDQ\ SURFHVVHV RI DJUDULDQ WLRQRI XQLRQODQGFODVVLÀHGDVSURSHUWLHVRI GRPLQLXP,Q
reform are challenged in the courts on the grounds that the coastal cities this land is often occupied by urban formal and
FULWHULD XVHG E\ WKH JRYHUQPHQW WR GHÀQH WKH SURSHUW\ LQ informal or irregular settlements. The legal instruments that
TXHVWLRQDVQRWIXOÀOOLQJLWV´VRFLDOIXQFWLRQµE\EHLQJ´XQ- can be applied for this purpose are: the Special Concession
productive” is illegal or unconstitutional, or in some case, just for Housing Purposes, DIRUDPHQWR 169 HPSK\WHXV and occupa-
plain wrong. The problem is often further complicated by the tion. 170
ODFNRI H[SHUWLVHRUVSHFLDOLVHGXQLWVGHGLFDWHGWRDJUDULDQUH-
form at the municipal level. The master plan should regulate There are two views on how best to deal with the regularisa-
UXUDOODQGXVHDQGGHÀQHUXUDODUHDVQRWIXOÀOOLQJWKHLUVRFLDO tion of union lands. One proposal is for the transfer of these
IXQFWLRQWKURXJKWKHLQVWUXPHQWRI ]RQLQJ6XFKGHÀQLWLRQV lands and their management to the municipalities. The second,
in the master plans could provide more legal support to the which is now in use by the federal government, establishes a
XQLRQ WR SURPRWH WKH H[SURSULDWLRQ RI XQSURGXFWLYH UXUDO procedure of shared management between the union, states
areas for agrarian reform purpose. DQGWKHPXQLFLSDOLWLHVVSHFLÀFDOO\IRUWKLVSXUSRVHVRWKDWWKH
necessities of the inhabitants of the cities for housing, leisure
The Law on Union Land areas, tourism and culture may be facilitated.
7KH/DZRQ8QLRQ/DQG/DZQRGHDOVZLWKWKH
regularisation, administration, alienation and leasing of lands There are new instruments established by the City Statute
belonging to the union. Article 1 refers to planned regularisa- that can be used to transfer the use of union land for housing
tion and utilisation, and authorises the union to institute ac- purposes, such as the rights to surface, the concession of use
tion in the Secretariat of Union Assets and by the Ministry of real right and the special concession of use for housing
RI 3ODQQLQJ)LQDQFHDQG0DQDJHPHQWIRUWKHLGHQWLÀFDWLRQ SXUSRVHV7KH6HFUHWDU\RI WKH8QLRQ$VVHWVLGHQWLÀHGWKH
demarcation, registration, inspection and regularisation of use of these new instruments as a priority, particularly to
RFFXSDWLRQRI LWVODQG7RIXOÀOWKHVHREMHFWLYHVWKHXQLRQLV regularise informal settlements.
authorised to ratify conventions with the states and munici-
palities in whose territory the lands are located.
169 Aforamento and emphyteus are old civil regimes related to property that have their
7KHUHJLPHFRQWUROOLQJSXEOLFDVVHWVLVFODVVLÀHGDFFRUGLQJWR origin in Roman law. The aforamento and emphyteus are used by the owner to confer
its destination, which is enshrined in the Constitution and the to another person the useful dominium of their property. The person that receives the
useful dominium of the property shall pay an annual fee to the owner. Since the early 20th
new civil code in the following form: century, the union conferred their land by aforamento and emplyteus for different purpose
such as rural activities and housing. Art. 99 of the Law of the Union Land authorised the
v 3URSHUWLHVRI FRPPRQXVHEHDFKHVURDGVKLJKZD\V use of these instruments.
ULYHUVHWF $FFRUGLQJ WR $UW RI WKH /DZ RQ WKH 8QLRQ /DQG RFFXSDWLRQ LV D VSHFL¿F
instrument to regularise the occupied land of the union. The occupants shall pay an
occupation fee to the union. The inscription of the occupation in the union land record and
the payment of the occupation fee do not generate recognition by the union of any right
over the property to the occupants, according the article 131.
6.4 Federal housing laws The new federal law on the National
Social Interest Housing System
There is no national legislation in Brazil concerned with all 7KHQHZIHGHUDO/DZQRHVWDEOLVKHVWKH1DWLRQDO
the aspects of protection and implementation of housing 6RFLDO ,QWHUHVW +RXVLQJ 6\VWHP DQG WKH 1DWLRQDO 6RFLDO
rights. However, there are various relevant national, state and ,QWHUHVW+RXVLQJ)XQG7KLVV\VWHPHQWDLOVWKHFRQFHSWLRQ
PXQLFLSDOODZVZLWKVSHFLÀFSURYLVLRQVUHODWHGWRWKHSURWHF- of a democratic and decentralised system, as it establishes
tion of housing rights. At the federal level, besides the legisla- the obligation on states and municipalities to constitute their
tion on land reform already mentioned above and the civil own housing funds and housing councils before they can
code that deals with property rights, the City Statute, the Law UHFHLYHUHVRXUFHVIURPWKH1DWLRQDO6RFLDO,QWHUHVW+RXVLQJ
RQ8UEDQ3URSHUW\/HDVLQJ/DZQRDQGWKHODZ )XQG7RXWLOLVHWKRVHUHVRXUFHVWKHVWDWHVDQGPXQLFLSDOLWLHV
HVWDEOLVKLQJWKHKRXVLQJÀQDQFHV\VWHP/DZQR must develop housing polices to be implemented by housing
are also of great importance in the struggle to make the right secretariats or public companies, community organisations,
to housing a reality. resident associations or cooperatives.
The National Social Housing System The adoption of urban and rural land access policies aiming
/DZQRZKLFKFUHDWHGWKHKRXVLQJÀQDQFHV\VWHP at the full implementation of the social function of property
FRQWDLQVWZRLQVWUXPHQWVWKH)*76DQGDPDQDJLQJFRXQFLO is also included as an important rule in the law.
for this fund. 1715HVRXUFHVIRUWKLVIXQGFRPHIURPSULYDWH
compulsory contributions from businesses and employees In the regulation of this law, an essential component that
in the formal market. The law determines that 60% of the needs to be included is related to the special needs of hous-
resources should be used for popular housing programmes. ing of the rural populations, indigenous populations, and the
$WWKHEHJLQQLQJRI WKH)*76DVVHWVH[FHHGHGELO- Afro-Brazilian populations of the TXLORPERODV communities.
OLRQUHDLVDSSUR[LPDWHO\ELOOLRQ Another important measure is that the Ministry of the City
DQGWKH1DWLRQDO&RXQFLORI &LWLHVZRXOGKDYHWKHFRPSH-
However, the major portion of the resources of this fund WHQFHWRGHÀQHWKHXWLOLVDWLRQRI WKHUHVRXUFHVRI WKH)*76
PXVWEHLQYHVWHGWRPHHWWKHZRUNHUV·ORQJWHUPZHOIDUHDQG WKDWZLOOEHDOORFDWHGWRWKH1DWLRQDO6RFLDO,QWHUHVW+RXVLQJ
labour guarantees. Thus, the administrators of the fund tend )XQG
WR LQYHVW RQO\ LQ IRUPDO KRPH ÀQDQFH ZKHUH WKH UDWHV RI
return maintain, or increase, the real value of the fund. In Law on Lease
practice, this means that most of the 60 percent destined by )HGHUDO/DZQRRI 2FWREHUFRQFHUQVWKHOHDVH
law for popular housing goes into homes for the medium of urban housing and the forms of protection for vulnerable
and high-income populations. Therefore, the Ministry of social groups that live in tenement houses. The general regu-
Cities is faced with the necessity to identify other resources ODWLRQVIRUOHDVHDUHVHWRXWLQWKHFLYLOFRGH$UW
for the establishment of a national democratic and decen- but were designed for property owners in the formal real
tralised housing system as demanded by many segments HVWDWHPDUNHW1RZIRUWKHÀUVWWLPH%UD]LOLDQOHDVLQJODZ
of society. A fundamental component of such a system is recognises the legality of leasing collective housing buildings
D1DWLRQDO3RSXODU+RXVLQJ)XQGSURSRVHGLQWKHSRSXODU VXFKDVWHQHPHQWV7KHODZDFFHSWVVSHFLÀFDOO\WKDWWHQHPHQW
LQLWLDWLYHZKLFKUHVXOWHGLQWKH3URMHFWRI /DZQR residents have rights of rental even if their contracts are
DQGZDVDGRSWHG\HDUVODWHULQ-XQHDV)HGHUDO/DZ informal or verbal. In São Paulo over one million people fall
into this category. r
171 The managing council consists of representatives of government, business and
labour.
The Law on Lease ensures the legal defence of rights for sional approval for Law no. 10,257, known as the City Statute.
people with low incomes that live in tenement houses. Even Article 1 of this statute establishes norms for public order
without a written contract between the owner and the tenants, and social interest by the regulation of the use of urban
the characterisation of the property as multifamily collective property for the common good and for the safety and well
housing gives the residents of this dwelling the status of legal being of all citizens. Article 2 provides 16 general guidelines
tenants or sub-tenants. 172 The law has given considerable for the formulation of urban policy, with the main objective
scope to initiatives by human rights organisations and those the promotion of the full development of the social func-
lawyers who work for the defence of the poorer population. tions of the city and of urban property. The most relevant
)RUWKLVODZWRKDYHLWVIXOOVRFLDOLPSDFWLQSUHVHUYLQJWKH JXLGHOLQHVIRUWKHSXUSRVHRI WKLVVWXG\DUHOLVWHGLQWKHER[
rights of tenement residents, it is essential that the Brazilian below.
VWDWHEXLOGWKHFDSDFLW\RI WKHMXGLFLDU\MXGJHVSURVHFXWRUV
DWWRUQH\VODZ\HUVWRSURSHUO\XQGHUVWDQGDQGDSSO\LWVWHUPV %R[&LW\6WDWXWH*HQHUDOJXLGHOLQHVIRUXUEDQSROLF\
Unfortunately, the government has not made much progress
in this direction so far. (1) Guarantee the right to sustainable cities: this is the right to urban land,
housing, environmental sanitation, urban infrastructure, transportation
Article 21 of the law also regulates the value of the rent, and public services, work and leisure for current and future generations
which may be charged in collective housing. The rent of (par. I);
WKHVXEOHDVHFDQQRWH[FHHGWKDWRI WKHSULPDU\OHDVHDQGLQ (2) Democratic, participatory management of the city, including popular
multifamily houses, the sum of the rents cannot be more participation in the formulation, implementation and monitoring of
urban development projects, plans and programmes (par. II);
than double the value of that lease. Article 24 establishes
special procedures to ensure that collective housing present (3) Cooperation between governments, private and other sectors of society
in the urbanisation process (par. III);
decent living conditions. Obviously, for these two provisions
(4) Planning and control of land use, in order to avoid: (a) improper,
to be observed in practice it is essential that the municipal
incompatible or inconvenient use of urban property; (b) subdivision of
government carries out regular inspections of the buildings land, construction or excessive/improper use of urban infrastructure; (c)
and punishes offenders. According to Art. 24 paragraph 3, speculative retention of urban property; (d) deterioration, pollution or
LI WKHPXQLFLSDODXWKRULWLHVLVVXHDFHUWLÀFDWHWKDWWKHOLYLQJ environmental degradation of urban areas (par. VI);
FRQGLWLRQV DUH LQDGHTXDWH WKH UHVLGHQWV FDQ WKHQ SURFHHG (5) Regularisation of land ownership and urbanisation of areas occupied by
DJDLQVW WKH RZQHU RI WKH EXLOGLQJ QRW WKH DJHQW WR IRUFH low-income populations through the adoption of norms and standards
KLPKHUWRWDNHWKHQHFHVVDU\VWHSVWRZDUGVKDELWDELOLW\RI related to special urbanisation, land use, occupation and buildings (par.
WKHEXLOGLQJ$PXQLFLSDOODZRI 6mR3DXORWKH0RXUD/DZ XIV);
spells out the manner in which the government should act in (6) Simplification of the legislation concerning sub-divisions, land use,
such cases and this law is discussed below. occupation and building standards (par. XVI);
(7) Integration between urban and rural activities, considering socioeco-
6.5 The City Statute nomic developments of the municipality and the territory under its
sphere of influence (par. VII);
(8) Adoption of sustainable production and consumption standards (par.
In order to implement the principles and instruments laid
VII);
GRZQ LQ $UW RI WKH &RQVWLWXWLRQ &KDSWHU RQ 8UEDQ
(9) Fair distribution of the benefits and burdens resulting from the urbani-
3ROLF\VSHFLÀFIHGHUDOOHJLVODWLRQZDVUHTXLUHG7ZHOYH\HDUV
sation process (par. IX);
after the promulgation of the 1988 Constitution, the urban
(10) Supply of adequate and locally suitable urban and community equip-
UHIRUP PRYHPHQW ÀQDOO\ VXFFHHGHG LQ REWDLQLQJ FRQJUHV-
ment, transportation and public services (par. V).
172 Art. 2 of the Law on Leasing.
SHULRG RI ÀYH \HDUV GHDGOLQH 2FWREHU IRU WKH PX- for their campaigns pressing for a change in governmental
nicipalities to complete drafting their master plans. Public thinking on this matter.
agents judged in default in these activities shall be suitably
VSHFLÀFDOO\SXQLVKHGLQDGGLWLRQWREHLQJVXEMHFWWRH[LVWLQJ 6.6 Customary law
OHJDO VDQFWLRQV )XUWKHUPRUH WKH PD\RU RI WKH FLW\ ZLOO EH
held responsible for administrative impropriety, in the terms Brazilian law does admit the recognition of use and custom
RI /DZQRRI -XQH$UW 177 ZKHQ WKHUH LV QR DGHTXDWH OHJLVODWLRQ WKDW GLVFLSOLQHV WKH
IRUPRI SURWHFWLRQRI DULJKW:LWKUHODWLRQWRKRXVLQJDQG
:LWK WKH REMHFWLYH RI DVVLVWLQJ WKH PXQLFLSDOLWLHV LQ WKH land policies, demand is growing that upgrading and land
implementation of the City Statute, the Secretary of Urban regularisation programmes should include as objectives the
3URJUDPPHVXQGHUWKH0LQLVWU\RI WKH&LWLHVLVGHYHORSLQJ protection and recognition of the cultural standards of use
ÀYHPXQLFLSDOVXSSRUWSURJUDPPHVD7KH,PSOHPHQWDWLRQ and custom, and the recognition of differences in the form of
RI 0DVWHU 3ODQV E 3URJUDPPH DQG 3URMHFWV IRU WKH land occupation and the types of housing adopted by social
5HJXODULVDWLRQRI /DQG7HQXUHF3UHYHQWLRQDQG(UDGLFDWLRQ groups living in informal settleeents. These considerations
RI 5LVN$UHDVG5HKDELOLWDWLRQRI &HQWUDO&LW\$UHDVDQG shoumd also be applicable independenuly of whether such
H &LW\ DQG 7HUULWRULDO 0DQDJHPHQW ,Q FLWLHV UH- social groupw occupy slums or collective houwes in the cities
TXHVWHG VXFK DVVLVWDQFH IURP WKHVH SURJUDPPHV +RZHYHU or indigenous willages, traditional or quilombo communities in
WKHPLQLVWU\·VEXGJHWDOORZVWKHPWRHIIHFWLYHO\DWWHQGWRRQO\ WKHUXUDODUHDV7KHOHJDOLQVWUXPHQWRI =(,6ZJXOGEHWKH
58 of these applicants. 178 PRVWDGHTXDWHIRUWKPVSXUSRVH
The budget of the Ministry of the City for the year 2005 6.7 Federal implementation of land and housing
KDVUHVRXUFHVWRDVVLVWPXQLFLSDOLWLHV7KLVLVH[SHFWHGWR rights
VDWLVI\WKHPDMRUUHTXLUHPHQWVEHFDXVHVRPHVWDWHVVXFKDV
3HUQDPEXFRDQG&HDUDDUHGHYHORSLQJSODQVIRUH[HFXWLRQ Some actions and initiatives on the part of civil society or-
by their own municipalities, and also because ministerial as- ganisations and the federal government and municipalities
VLVWDQFHLVPDLQO\UHTXLUHGIRUWKHVPDOOHUPXQLFLSDOLWLHVRI deserve recognition. In the Ministry of Cities, all credit should
LQKDELWDQWVDQGIRUWKRVHORFDWHGLQWKHQRUWK be given to the progress achieved in the implementation of
and northeast regions of the country. WKH8SJUDGLQJ5HJXODULVDWLRQDQG,QWHJUDWLRQRI 3UHFDULRXV
Settlements Programme. This was initially planned to sup-
A further indication of the growing acceptance of the City port 100 municipalities in the realisation of municipal land
Statute in practice is that it is being used by sectors of civil regularisation programmes, such as the forging of technical
society and the Public Prosecutor as an instrument to ensure cooperation agreements between the Ministry of Cities and
that the elaboration and implementation of master plans is 3ODQQLQJ 6HFUHWDU\ RI )HGHUDO $VVHWV WKH 1RWDU\ 3XEOLF
both participatory and democratic. In those cities where the DQG5HJLVWU\$VVRFLDWLRQDQGWKHPXQLFLSDOLWLHVWRDFFHOHUDWH
local government has not yet democratised the process of the process of land regularisation in public federal properties
IRUPXODWLRQ RI D PDVWHU SODQ VXFK DV 6mR /XLV )RUWDOH]D occupied by low-income populations.
6DOYDGRU)ORULDQySROLV5LRGH-DQHLURDQG%RD9LVWDSRSX-
lar movements and forums are using the City Statute as a basis 6RPHDOORFDWLRQVIURPWKHPLQLVWU\·VEXGJHWWRPXQLFLSDOLWLHV
DQG1*2VDOVRKHOSVXSSRUWODQGUHJXODULVDWLRQ
177 The federal Law no 8.429, of June 2 1992 establish criteria and discusses the
administrative responsibility of the public authorities
178 In order to support the 646 municipalities, the Ministry of the City estimates that
DERXWPLOOLRQUHDLVDERXWPLOOLRQLVUHTXLUHG
WKH YXOQHUDEOH RU VRFLDOO\ PDUJLQDOLVHG /DZ\HUV· QHWZRUNV cal support for the cooperatives comprised of low-income
specialising in human rights and urban legislation should in- IDPLO\PHPEHUVHDUQLQJXSWRÀYHPLQLPXPZDJHVDQGIRU
crease their efforts to involve members of the justice depart- the municipalities, which are intending to implement such a
PHQWVDQGWKHSXEOLFUHJLVWHUVLQKXPDQULJKWVTXHVWLRQVE\ SURJUDPPH7KHSURJUDPPHEHQHÀWVUXUDODQGXUEDQKRXV-
promoting courses, seminars and congresses with the wider LQJ FRRSHUDWLYHV DQG SURYLGHV ÀQDQFLDO UHVRXUFHV WR EXLOG
legal community. QHZKRXVHVWRFRQVWUXFWLQGLYLGXDOVDQLWDU\IDFLOLWLHVDQGRU
WR LPSURYH DOUHDG\ H[LVWHQW KRXVLQJ 7KH UHVRXUFHV DUH DO-
7 S t a t e L aws a n d P o licie s located directly to the cooperatives: half of the total amount
R e l a t e d to L a n d a n d H o u sing is allocated to the co-operative to provide the construction
materials, to contract technical assistance and to build the
The individual states formulate their urban and housing houses. The state government grants the other 50 percent
policies on the basis of their own constitutions and hous- DVDVXEVLG\WRWKHEHQHÀFLDULHVWREX\WKHKRXVHV,Q
ing legislation, taking into account the Constitution and the the state housing secretariat signed a technical cooperation
City Statute. Particularly good results of this symbiosis can DJUHHPHQW ZLWK WKH 8UXJXD\DQ )HGHUDWLRQ RI 0XWXDO$LG
be seen in housing legislation in São Paulo and in the state +RXVLQJ&RRSHUDWLYHVWRH[FKDQJHH[SHUWLVHDQGNQRZOHGJH
FRQVWLWXWLRQRI 5LR*UDQGHGR6XO 179 RQKRXVLQJFRQVWUXFWLRQDQGDVVLVWDQFH)URPWRD
WRWDORI FRRSHUDWLYHVEHQHÀWHGIURPWKLVSURJUDPPH
In the state of São Paulo, the following relevant state
OHJLVODWLRQ FDQ EH PHQWLRQHG D /DZ RI 0DUFK 8 Review of Select ed M unicipal
UHJXODWHV WKH )LQDQFLQJ DQG ,QYHVWPHQW )XQG IRU Laws and Policies Relat ed
8UEDQDQG+RXVLQJ'HYHORSPHQWE/DZRI 0DUFK t o Land and Housing
UHJXODWHV WKH ÀQDQFLQJ DQG GHYHORSPHQW RI VRFLDO
KRXVLQJ SURJUDPPHV IRU ORZLQFRPH KRXVHKROGV F /DZ Since the new urban legal order was laid down in the 1988
UHJXODWHVWKH6RFLDO/HDVLQJ3URJUDPPHDQGG Constitution, various municipalities have taken the initiative
/DZUHJXODWHVWKH&UHGLW3URJUDPPHIRU/DQG to implement the new objectives and instruments of urban
Purchases. SROLF\ 7ZR IDFWRUV PDGH WKLV UHVXOW SRVVLEOH WKH H[LVWHQFH
of coalitions of social organisations and popular move-
$UWLFOHRI WKHVWDWH&RQVWLWXWLRQRI 5LR*UDQGHGR6XO ments pressing for urban reform, and the collaboration of
establishes a state housing policy with participation from authorities and local managers committed to implementing
organised communities. This includes budgetary allocations this platform.
to assist low-income families and a range of other initiatives,
including housing construction. 180 7KH PXQLFLSDOLWLHV RI 6mR 3DXOR DQG 3RUWR $OHJUH DUH H[-
amples of the adoption of a legal urban order, including an
The Housing Cooperatives Programme established by the urban reform policy.
JRYHUQPHQW RI 5LR *UDQGH GR 6XO LV UXOHG E\ 'HFUHH QR
ZKLFK UHFRJQLVHV WKH KRXVLQJ FRRSHUDWLYHV 8.1 São Paulo
as constructor agents of social housing. The state housing
VHFUHWDULDW LV UHVSRQVLEOH IRU DVVXULQJ ÀQDQFLDO DQG WHFKQL- The formulation of the municipal
constitution in São Paulo: 1990
179 The state of Rio Grande do Sul is located in the southern region of Brazil and its
capital city is Porto Alegre, while the state of São Paulo is in the southeast; its capital is The process of adoption of a municipal constitution of
the city of São Paulo.
São Paulo in 1990 allowed the presentation of a popular
180 Art. 175.
DPHQGPHQW SURSRVDO RQ XUEDQ UHIRUP E\ YDULRXV 1*2V housing projects, and the creation of ZEIS in the ir-
regularly occupied slum areas;
professional organisations and popular movements. The
popular urban reform amendment contained proposals on v (TXLWDEOHDSSOLFDWLRQRI DGYHUVHSRVVHVVLRQLQSULYDWH
consolidated areas and of the Special Concession for
WKHUHVLGHQWV·ULJKWWRWKHFLW\LQVWUXPHQWVRI XUEDQSROLF\
+RXVLQJ3XUSRVHVLQSXEOLFDUHDV$UW,,,
related to housing and land, and a section on the democratic
PDQDJHPHQWRI WKHFLW\$WWKDWWLPHWKH:RUNHUV3DUW\37 v The upgrading of areas occupied by low-income pop-
XODWLRQV LPSURYHPHQW RI EDVLF LQIUDVWUXFWXUH VRFLDO
governed the municipality of São Paulo.
IDFLOLWLHVDQGSXEOLFVHUYLFHVDQGLQWHJUDWLRQZLWKVR-
cial housing production; and
)RU WKH ÀUVW WLPH WKLV SRSXODU XUEDQ UHIRUP DPHQGPHQW
v )UHH WHFKQLFDO DQG OHJDO DVVLVWDQFH IRU GLVDGYDQWDJHG
permitted that the demands of tenement house and slum
and vulnerable communities and social groups.
residents for their rights could be heard publicly and consid-
ered formally in the process of city law development. The The strategic role of ZEIS
PXQLFLSDO FRQVWLWXWLRQ $UW HVWDEOLVKHV WKH IROORZLQJ =(,6LVDVSHFLÀFFDWHJRU\RI FLW\]RQLQJWKDWDOORZVWKHDS-
guidelines and principles: democratic practice; sovereignty SOLFDWLRQRI VRPHZKDWORZHURUDWOHDVWGLIIHUHQWVWDQGDUGV
and popular participation; transparency and popular con- for the use and occupation of land in land regularisation
trol of government actions; respect of autonomy; and the SURJUDPPHV LQ ORZLQFRPH DUHDV RU GXULQJ WKH H[HFXWLRQ
independence of social movements and associations. Urban of social housing projects. By offsetting special norms with
SROLFLHVPXVWDVVXUHWKHSURPRWLRQDQGWKHIXOÀOPHQWRI WKH urban restrictions for high-income real-estate projects, an
ULJKWWRDGHTXDWHKRXVLQJ attempt is made to balance the use of space by all the oc-
cupants to make it possible for the low-income population
In terms of Art. 168: to live in central, privileged locations in the city. In fact, it is
Municipal housing policies must provide for the articulation and the instrument by which the slums are to be transformed and
integration of activities of the Municipal government and the included in the legal urban order.
representatives of the concerned communities, and for making
available the necessary institutional and financial instruments. The master plan mapped out 710 ZEIS areas in São Paulo
using the following categories:
The master plan in São Paulo: v ZEIS 1: where the slums and popular irregular land
Law no. 14.430/2002 settlements are situated;
After intense and democratic negotiations, the current master v ZEIS 2: empty or underused areas for the promotion
SODQRI 6mR3DXORDGRSWHGE\PXQLFLSDOODZ of social housing;
incorporates the guidelines and instruments of urban policies v ZEIS 3: areas with slums or tenement housing in cen-
established in the City Statute. In its sections on housing the tral neighbourhoods; and
master plan lists as some of its objectives the improvement v =(,6HPSW\ODQGDGHTXDWHIRUKRXVLQJEXWORFDWHG
RI H[LVWLQJKRXVLQJIRUORZLQFRPHIDPLOLHVDQGWKHSURGXF- in environmentally protected areas that may be used
tion of social housing. 181 Land regularisation is considered wholly or partly for social housing projects.
a component of urban housing and urbanisation policies and
is divided into two action elements: slum upgrading and legal Municipal law protecting the residents
security of tenure. Other strategic actions are: of tenement houses in São Paulo
v The demarcation of central areas within the city with 7KLVPXQLFLSDOODZRI 6mR3DXORQRGHDOVZLWK
DGHTXDWHLQIUDVWUXFWXUHIRUWKHFRQVWUXFWLRQRI VRFLDO housing conditions in tenement houses. In Art. 2, the munici-
pality considers that the responsibility for housing conditions
181 Art. 79, V.
a sense of achievement and pride in the work done and the The Mutirão (cooperative self-help) programme
services performed. and the self-management system
This programme was drawn up and implemented during
The COMATHAB debates and assigns not only the budg- 1989-1992 by the São Paulo mayoralty in partnership with
eted resources of the municipal development fund, but 108 community associations and 24 technical assessment
DOVR SDUWLFLSDWHV LQ WKH DOORFDWLRQ RI ÀQDQFHV DQG KRXVLQJ entities, and involved 10,000 houses. In the self-management
SROLFLHV$OWKRXJKWKHÀQDOZRUGRQDOOEXGJHWPDWWHUVUHVWV system, the municipality gives support, materials and funds to
with the municipal council on participatory budgeting, the the associations so they can build the houses and the associ-
proposals are always previously discussed and approved by ated urban infrastructure. The Metropolitan Housing Public
COMATHAB. &RPSDQ\&2+$%XQGHUWKHPXQLFLSDOKRXVLQJVHFUHWDU\
is responsible for the implementation of the infrastructure.
%HVLGHV WKH PRQWKO\ PHHWLQJV RI WKH FRXQFLO ZKLFK E\
GHÀQLWLRQDUHFRQFHUQHGZLWKWKHGD\WRGD\PDQDJHPHQWRI Housing construction under these programmes had ben-
SXEOLFSURMHFWVPHHWLQJVRI WKHPDWLFFKDPEHUVODQGUHJX- HÀWHGDERXWSHRSOHZKHQZRUNVWKDWKDGODLQGRUPDQW
ODULVDWLRQLQVSHFWLRQSODQQLQJDQGGHYHORSPHQWDUHKHOGDW for more than eight years were restarted. According to the
regular intervals. At all these meetings, the presence of the current government, 4,551 homes started between 1989 and
written and televised press is encouraged, and many national ZHUHFRPSOHWHG7KHPXQLFLSDOKRXVLQJIXQGÀQDQFHV
DQGLQWHUQDWLRQDO1*2VSDUWLFLSDWH the building project, and COHAB constructs and manages
the infrastructure. The houses are constructed by the PXWLUmR
Somewhat differently than in São Paulo, but with virtually the PHPEHUVUHSUHVHQWHGE\WKHLUDVVRFLDWLRQVZKRDUHJHQHU-
same outcome, the creation of the municipal housing council DOO\WKHIXWXUHUHVLGHQWV7KH\DUHUHTXLUHGE\WKHWHUPVRI
LVWKHUHVXOWRI DSURSRVDO DSSURYHGLQWKH)LUVW0XQLFLSDO the PXWLUmR contract to hire technical assistants as and when
Housing Conference. The council is composed of 48 mem- UHTXLUHGDQGWREHUHVSRQVLEOHIRUWKHH[HFXWLRQRI WKHKRXV-
bers. Of the total, 16 are representatives of popular housing ing project. Besides the actual homes, the PXWLUmR programme
entities, another 16 represent other sectors of civil society provides funds for the construction of infrastructure, such as
XQLYHUVLWLHV1*2VWKHSULYDWHVHFWRUDQGUHSUHVHQWWKH paved roads, waterworks, sewage and public illumination.
SXEOLFDXWKRULW\PXQLFLSDOLW\VWDWHXQLRQ7KHFRXQFLOKDV
both deliberative and monitoring powers. The secretary of housing gave permission to the associations
to use the land and build the houses. The majority of the land
9.2 Housing programmes in the city of São DOORFDWHGWRWKHSURJUDPPHUHVXOWHGIURPH[SURSULDWLRQRI
Paulo private land. A municipal project of law seeks to authorise
the concession of use of the real rights or the sales to the
Land regularisation EHQHÀFLDU\RI WKHSURJUDPPH
%DVHGRQWKHPDVWHUSODQDQG/DZQR6mR3DXOR
is developing a land regularisation programme of consider- Actions in defence of women’s housing rights
able impact in slums situated in public areas. Some 160 slums In 2002 the São Paulo municipality created an entity to
DUH EHLQJ UHJXODULVHG DQG IDPLOLHV DERXW FRQFHQWUDWH RQ ZRPHQ·V KRXVLQJ DQG RWKHU ULJKWV &DOOHG
SHRSOHZLOOEHQHÀW8SWR-XQHWLWOHVIRU6SHFLDO WKH 6SHFLDO &RRUGLQDWRU IRU :RPHQ·V $IIDLUV LW LV GLUHFWO\
Use Concessions for Housing Purposes had been delivered FRQQHFWHGZLWKWKHPD\RU·VFDELQHW7RLQYROYHZRPHQPRUH
by the Department of Housing and Urban Development to closely in housing policies, the coordinator, in partnership
the low-income population. with COHAB, has elaborated a proposal for the creation
of coordination centres in which women will play an even to make urban matters a priority on the political, economic
more central role in collective housing construction. This and social agenda; the initiatives of the federal government
SURFHVVVKRXOGOHDGWRSHUPDQHQWH[FKDQJHVRI LQIRUPDWLRQ through the Ministry of Cities; and the establishment of a
DQGH[SHULHQFHFDSDEOHRI HQVXULQJWKDWWKHGHYHORSPHQWRI national, decentralised and democratised housing policy
housing and land policies proceeds with a focus on gender system. All these are positive indicators that can lead to the
issues. removal of barriers obstructing the struggle to end social
H[FOXVLRQ ,Q WKLV ZD\ VWDWH DQG VRFLHW\ IDFH WKH FKDOOHQJH
The organisation of the National RI FRPEDWLQJ VRFLDO LQHTXDOLW\ RI SURPRWLQJ EHWWHU OLYLQJ
Union for Popular Housing conditions, of promoting access to land and housing for low-
7KH1DWLRQDO8QLRQIRU3RSXODU+RXVLQJLVDSRSXODUKRXV- income people who have been deprived for many years of
ing movement organised in 17 states. In the state of São the enjoyment of even minimal access to economic, social
Paulo, the movement unites various housing associations and cultural human rights.
and cooperatives that build housing by the self-help system
PXWLUmRZLWKVWDWHIXQGV7KHXQLRQLQFOXGHVRUJDQLVDWLRQV Despite efforts to improve the living standards in slum settle-
that have carried out a range of negotiations and actions in ments, the investments made in this area are hindered by lim-
support of advancing social housing projects in the city. Also LWHGÀQDQFLDODLGDQGRWKHUREVWDFOHVWKDWPXVWEHHOLPLQDWHG
worthy of mention are the many marches and demonstra- However, in a globalised economy, it is not possible to achieve
tions organised by this movement in the last 10 years in the these targets in one country alone. The effort to create a new
)HGHUDOFDSLWDORI %UDVLOLDWRSUHVVXUHWKHFRQJUHVVWRGHIHQG model that addresses the limitations and obstacles to achiev-
and approve the popular initiative for a law creating the ing these targets depends on the full accord of all nations
1DWLRQDO)XQGIRU3RSXODU+RXVLQJ:RPHQDUHUHSUHVHQWHG within a global economic order. It is therefore necessary to
in the national coordination of the movement and three of reach an international understanding so that investments in
WKHPLQFOXGLQJWZR $IUR%UD]LOLDQV DUH FRXQFLOORUVLQ WKH sanitation and housing for the poorest populations, closely
1DWLRQDO&LW\&RXQFLO UHODWHG WR WKH IXOÀOPHQW RI WKH 0LOOHQQLXP 'HYHORSPHQW
Goals, are not included in the debt for the estimation of the
1 0 C o n c l u s io n primary surplus, debtor and developing countries.
several times over by the interest charges paid, and the inter- 11.3 Strengthen and consolidate National
QDWLRQDODJHQFLHVFDQZHOODIIRUGWRSURORQJ%UD]LO·VGHEWIRU Council of the Cities
a little longer in order to free up funds for the greater good
of millions of people. :HUHFRPPHQGWKHVWUHQJWKHQLQJDQGFRQVROLGDWLRQRI WKH
UROHRI WKH1DWLRQDO&RXQFLORI WKH&LWLHVDQGFRQIHUHQFHV
The Brazilian government, together with those of other as strategic instruments for the implementation of a decen-
developing countries, must internationally defend a shift in WUDOLVHGDQGGHPRFUDWLF1DWLRQDO&LW\6\VWHPFRQVLVWLQJRI
the utilisation of national funds now earmarked for the re- municipal and state city councils.
payment of the debt. Instead, these funds should be invested
in social policies such as housing and sanitation. The govern- 11.4 Land management
ment, in international forums, should advance the argument %UD]LOVKRXOGLQVWLWXWHQDWLRQDODQGUHJLRQDOODQGXVHSODQV
that national investments in sanitation and housing for the
SRRUHVWFLWL]HQVZKLFKDUHFORVHO\UHODWHGWRWKHIXOÀOPHQWRI 7KHUXOHVFRQWUROOLQJWKHUHTXLUHPHQWVIRUSXEOLFUHJLV-
the Millennium Development Goals, should not be included try of land ownership need urgent revision to
in debt repayments. LVWDQGDUGLVHWKHSURFHGXUH
LLUHPRYHWKHSUHVHQWGLVWULEXWHGPDQDJHPHQWRI
These measures are necessary to eliminate the obstacles to public lands,
releasing resources for social programmes in Brazil.
LLL UHPRYH RU UHGXFH WKH REVWDFOHV WR UHJLVWU\
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funds now used to repay the foreign debt to programmes to provision of free legal assistance services are the two
subsidise housing programmes for vulnerable segments of main measures that should be taken to consolidate the
the population. inheritance rights of the dwellers in informal settle-
ments. Courts must also alter their traditional positions
to permit the transfer of ownership or possession to
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AP P E N D IX
Appendix I
Provide for health and public assistance and for the protection and safeguard of disabled persons; Par. VI
A p p e n d i x II
7DEOH,,,7HQXUHW\SHVLQXUEDQDUHDV
Type of Tenure Sub-categories and description Legal basis
Ownership (legal possession) Purchase and sales of real estate: (a) Art. 481-528 of the Civil Code
Also used in cases of collective irregular occupation on private or public lands: in (b) Art. 538 -564
this case, a popular movement organises a civil Association and buys the land of the Civil Code
from the owner.
(c) Criteria in Art. 183(3) and 189 of the
Donation: Constitution, Art. 1240 Civil Code and Art.
Has been used by municipalities and states to provide popular housing to families 9-15 of City Statute (see main text below)
in situations of risk, e.g. during floods and landslides. (d) Art. 183(1) of the Constitution and
Urban adverse possession Art. 1240, par. 1 of the Civil Code (urban
(Usucapião Urbano) adverse possession and Special Concession
for Housing Purposes)
Under certain circumstances, the irregular individual or collective occupant(s)
acquires legal possession of an urban plot. The collective option is often used to
regularise entire informal settlements.
Joint titling is not mandatory, but the ownership title and concession of use shall be
granted to the man or woman, or both, regardless of their marital status.
Formal lease and rent Lease of land: used in formal real estate market. Art. 565-578 Civil Code
Lease of housing: Individual or of collective ‘tenement houses’ (multifamily collec-
tive housing rental (cortiços)).
Federal Law 8,245 of 1991
Rent/sub-lease/sub-letting of housing.
Informal lease or rent Lease and sublease of land, housing
Lease of housing
Widely used both in formal and informal leasing/renting.
Informal rental in tenement houses is very common, with low security of tenure,
high rental rates and bad living conditions.
(a) If the criteria in Art. 1 of Provisional
User rights (a) Special Concession for Housing Purposes (concessão de Uso Especial para Fins
Measure 2220 of 2001 are met (see below),
de Moradia - CEFM). occupant acquires user right to public prop-
Collective form of this right is used in slums/informal settlements. erty of max. 250 m2.
(b) Concession of Real Right to Use (Concessao do Direito Real de Uso – CDRU) (b) Decree 271 of 1967 and City Statute, Art.
Collectively used in social housing programmes. If government agrees, no need to 4o, V, g and Art 48. Public and private land.
go to court – administrative procedure only. (c) Art. 1412 –1413 Civil Code; Art. 26
(c) Use; or a loan for use. Federal Law 6766/79
(d) Right of surface. Ensures access to land. (d) Art. 21 City Statute; Art. 1369 – 1377
Civil Code
(TXDOODQGKRXVLQJDQGSURSHUW\ULJKWVDUHUHFRJQLVHGLQYDULRXVLQWHUQDWLRQDOKXPDQULJKWVLQVWUXPHQWVLQFOXGLQJ
These housing and property rights include the right to return. 189
&RQYHQWLRQRQWKH(OLPLQDWLRQRI $OO)RUPVRI 'LVFULPLQDWLRQ$JDLQVW:RPHQ&('$:
v $UWLFOH UHTXLUHV WKH HOLPLQDWLRQ RI GLVFULPLQDWLRQ DJDLQVW ZRPHQ LQ DUHDV RI HFRQRPLF DQG VRFLDO OLIH WR HQVXUH
184 Universal Declaration of Human RightsDGRSWHGRQE\*HQHUDO$VVHPEO\5HVROXWLRQ$,,,81*$25rd Session.
185 International Covenant on Economic, Social and Cultural Rights, adopted on 16/12/1966. General Assembly Resolution 2200 (XXI), 21st Session, Supp. No. 16, U.N. Doc.
$8176HQWHUHGLQWRIRUFHRQ$VRI-XQHVWDWHVKDGEHFRPHSDUW\ZKLOHVWDWHVKDGVLJQHGEXWQRW\HWUDWL¿HG
186 The right to adequate housing consists of the following elements: (1) legal security of tenure irrespective of the type of tenure; (2) availability of services, materials, facilities
and infrastructure; (3) affordability; (4) habitability; (5) accessibility (including access to land); (6) location; and (7) cultural adequacy. See UN Committee on Economic, Social and
Cultural Rights, General Comment No. 4 on the Right to Adequate Housing. UN Doc. EC/12/1991/41 (1991). For full text see: http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/
IGDFHGH"2SHQGRFXPHQW
187 International Covenant on Civil and Political Rights, adopted on 16/12/1966 by General Assembly Resolution 2200 (XXI), Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S.
7KH,&&35HQWHUHGLQWRIRUFHRQ$VRI-XQHVWDWHVKDGUDWL¿HGWKH,&&35ZKLOHKDGVLJQHGLW
188 International Convention on the Elimination of All Forms of Racial Discrimination, adopted on December 21 1965 by General Assembly resolution 2106 (XX), entry into force on
-DQXDU\$VRI-XQHVWDWHVZHUHSDUWLHVWRWKLV&RQYHQWLRQZKLOHKDGVLJQHGEXWQRW\HWUDWL¿HG
189 See UN Committee on Elimination of Racial Discrimination, General Recommendation nr. XXII on Article 5: Refugees and Displaced Persons, 1996. Available on: http://www.
XQKFKUFKWEVGRFQVI6\PEROIHGFGHH"2SHQGRFXPHQW
190 Convention on the Elimination of All Forms of Discrimination Against WomenDGRSWHGRQ*HQHUDO$VVHPEO\5HVROXWLRQ81*$25th Session, Supp.
No. 46, U.N. Doc. A/34/36 (1980), entered into force 3/9/1981. As of March 2005, 180 states had become party.
ZRPHQ·VHTXDOULJKWWREDQNORDQVPRUWJDJHVDQGRWKHUIRUPVRI ÀQDQFLDOFUHGLW
v $UWLFOHKFRQÀUPVZRPHQ·VULJKWWRHQMR\DGHTXDWHOLYLQJFRQGLWLRQVSDUWLFXODUO\LQUHODWLRQWRKRXVLQJVDQLWD-
tion, electricity and water supply, transport and communications; and
v $UWLFOHDFFRUGVZRPHQHTXDOLW\ZLWKPHQEHIRUHWKHODZDQGUHFRJQLVHVWKHLUHTXDOULJKWWRFRQFOXGHFRQWUDFWVDQG
administer property.
Convention on the Rights of the Child (CRC) 191
v $UWLFOHUHFRJQLVHVWKHULJKWRI HYHU\FKLOGWRDVWDQGDUGRI OLYLQJDGHTXDWHIRUWKHFKLOG·VSK\VLFDOPHQWDOVSLULWXDO
moral and social development.
Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries (Convention
169) 192
v Article 7 recognises the right of indigenous and tribal peoples to their own decisions regarding the land they occupy or
otherwise use;
v $UWLFOHFRQÀUPVWKHULJKWWRUHWDLQRZQFXVWRPVDQGLQVWLWXWLRQVZKHUHWKHVHDUHQRWLQFRPSDWLEOHZLWKLQWHUQD-
tional human rights; and
v $UWLFOHUHTXLUHVWKHUHFRJQLWLRQDQGSURWHFWLRQRI WKHULJKWWRRZQHUVKLSDQGSRVVHVVLRQRYHUWKHODQGVWKDWLQGLJ-
enous and tribal peoples traditionally occupy, and the right of use for subsistence and traditional activities; and
v Article 16 stipulates that relocation from land has to be done with free and informed consent, the right to return or
HTXDOODQGDQGFRPSHQVDWLRQ
In Table 1.1 below, an overview is provided of which countries in Latin America are party to these human rights instru-
ments. 194
191 Convention on the Rights of the Child, adopted on 20/11/1989 by General Assembly Resolution 44/25, U.N. Doc. A/44/25, entered into force on 2/9/1990. All states except U.S.A.
and Somalia have become parties.
192 Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries,
$GRSWHGRQ-XQHE\WKH*HQHUDO&RQIHUHQFHRIWKH,QWHUQDWLRQDO/DERXU2UJDQLVDWLRQDWLWVVHYHQW\VL[WKVHVVLRQ(QWHUHGLQWRIRUFHRQ6HSWHPEHU&RQYHQWLRQ
ZDVUDWL¿HGE\FRXQWULHV6HHKWWSZZZLORRUJLOROH[FJLOH[UDWLIFHSO"&
193 $PHULFDQ&RQYHQWLRQRQ+XPDQ5LJKWV³3DFWRI6DQ-RVH&RVWD5LFD´DGRSWHGRQ1RYHPEHUHQWU\LQWRIRUFHRQ-XO\2UJDQLVDWLRQRI$PHULFDQ6WDWHV
Treaty Series, No. 36. The United States and 24 Latin American states are party to this regional convention. See http://www.oas.org/juridico/english/Sigs/b-32.html
194 $IWHUFRXQWU\UHSUHVHQWDWLYHVKDYHVLJQHGDQLQWHUQDWLRQDORUUHJLRQDODJUHHPHQWWKHLUKHDGRIVWDWHKDVWRDSSURYHLW8SRQVXFKDSSURYDOWKHVLJQHGDJUHHPHQWLVUDWL¿HG
:KHWKHUUDWL¿FDWLRQLVQHFHVVDU\RUQRWLVVWDWHGLQWKHDJUHHPHQW,IDVWDWHKDVQRWVLJQHGDQGUDWL¿HGVXFKDJUHHPHQWLWFDQVWLOODFFHGHWRWKHWUHDW\DWDODWHUGDWH%\UDWLI\LQJRU
acceding to an international or regional agreement, the state becomes party to it is bound to the obligations laid down in that agreement. If the state only signs but does not ratify, it is
nevertheless bound to do nothing in contravention of what is stated in that agreement.
El Salvador
Guatemala
Dominican
Nicaragua
Venezuela
Costa Rica
Argentina
Honduras
Paraguay
Colombia
Uruguay
Republic
Panama
Ecuador
Bolivia
Mexico
Treaty
Brazil
Cuba
Chile
Peru
NO YES YES YES YES YES YES YES YES YES YES YES
ICESCR NO YES YES YES YES YES YES
A: A: S: S: S: A: 1978 S: S: S: A: S:
A: A: A: S: S: 1967 S:
1982 1992 1969 1966 1966 1967 1967 1966 1981 1976
1988 1980 1992 1977 R: 1970 1969
R: R: R: R: R: R: R:
R: R:
1972 1969 1968 1969 1979 1981 1977
1978 1978
ICCPR YES YES YES YES YES YES NO YES YES YES YES YES YES YES YES YES YES YES YES
S: A: A: S: S: S: A: 1978 S: S: A: S: A: A: A: S: S: S: 1967 S:
1968 1982 1992 1969 1966 1966 1968 1967 1992 1966 1981 1980 1980 1976 1977 R: 1970 1968
R: R: R: R: R: R: R: R: R: R:
1986 1972 1969 1969 1999 1979 1997 1977 1978 1978
YES YES YES NO YES YES YES YES YES YES YES YES YES YES
Optional YES YES NO A: S: S: A: 1978 S: S: YES S: A: A: A: S: YES S: 1967 S:
Protocol A: A: 1992 1966 1966 1968 1976 A: 1966 2002 1980 1980 1976 S: 1976
R: 1970
to ICCPR 1986 1982 R: R: R: R: 2000 R: R: 1977 R:
of 1966 b 1969 1968 1969 1995 2005 1977 R: 1978
1980
ICERD YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES
S: S: S: S: S: S: S: A: 1983 A: A: S: A: S: A: A: S: S: S: 1967 S&R:
1967 1966 1966 1966 1967 1966 1966 1966 1979 1967 2002 1966 1978 1978 1966 1966 R: 1968 1967
R: R: R: R: R: R: R: R: R: R: R:
1968 1970 1968 1971 1981 1967 1972 1983 1975 1967 1971
CEDAW YES c YES YES d YES e YES YES YES f YES YES YES g YES YES YES h YES YES YES YES YES YES i
S: S: S: S: S: S: S&R: S: 1980 S: 1980 S: 1980 S: 1981 S: 1980 S: S: S: 1980 S: 1993 A: S: 1980 A:
1980 1980 1981 1980 1980 1980 1980 R: 1982 R: 1981 R: 1981 R: R: 1983 1980 1980 R: 1981 R: 1995 2004 R: 1985 1991
R: R: R: R: R: R: 1982 R: R: 1981
1985 1990 1984 1989 1982 1986 1981
Optional NO YES YES NO NO YES NO YES YES NO YES NO YES NO YES YES YES YES
Protocol S: S: YES
S: S: S: S: S: S: 2000 S: S: S: S: S: S: S: 2000 S:
to 2000, 1999 2001 1999, 1999, 1999 2001, 2000 1999 2000 1999 S:
2000 R: 2001 1999 R: 2001 2000
CEDAW but but but R: but 2000
R: R: but R: R: R: R: R: R:
of 1999 j not R not R not R 2001 not R
2000 2002 not R 2002 2002 2001 2001 R: 2002
2002
2001
El Salvador
Guatemala
Dominican
Nicaragua
Venezuela
Costa Rica
Argentina
Honduras
Paraguay
Colombia
Uruguay
Republic
Panama
Ecuador
Bolivia
Mexico
Treaty
Brazil
Cuba
Chile
Peru
CRC YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES
S&R: YES YES YES
S&R: S&R: S&R: S&R: S: S: S: 1990 S&R: S&R: S&R: S&R: S&R: S&R: S&R: S&R:
1990 1990 1990 1990 1990 1990 1990 1990 1990 1990 1990 1990 1990 1990 1990 S&R: S&R:
R: 1991
1990 S&R: 1990
R: R:
1991 1991 1990
Conve- YES YES YES NO YES YES NO YES YES NO YES YES YES NO NO YES YES NO YES
ntion 169 R: R: R: R: R: R: 2002 R: R: R: 1995 R: R: 1993 R: R:
2000 1991 2002 1991 1993 1998 1996 1990 1994 2002
ACHR YES k YES YES YES YES YES NO YES YES YES YES YES YES YES YES YES
YES YES YES
S&R: A: A: S: S: S: A: 1993 S: 1969 S: 1969 S: 1969 S: 1969 A: S: 1969 S: 1969 S: 1969
S: S: 1969 S:
1984 1979 1992 1969 1969 1969 R: 1977 R: 1978 R: R: 1977 1981 R: R: R: 1989 1977
R: 1985 1969
R: R: R: 1978 1979 1978
R: R:
1990 1973 1970
1978 1977
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