By Co-Editor Winston Ardoin
Written during the period of redemocratization after the repressive military dictatorship, the 1988 Constitution of the Federative Republic of Brazil is among the most progressive in the world. After the preamble and a short list of foundational principles, Title II explicitly describes all the fundamental rights and guarantees granted to every citizen by the State. One of the longest and most detailed declarations of rights in any national constitution, the drafters’ progressive and inclusive goals created a difficult problem for the Brazilian state: the potential for conflicts of rights.
Like the American court system, Brazilian courts must choose which right to uphold and defend when competing groups bring opposing claims citing different constitutional rights. In a deeply unequal country where political and legal structures remain controlled by the elite, the question often also becomes whose rights matter more: those of the powerful or those of the marginalized? One collision of rights , especially present in major cities such as São Paulo, serves as a perfect example of this: the conflict between property and housing rights.
The Rights in Question
Of the two rights in question, the right to property has been included in the Brazilian constitution since adoption. However, the roots of property rights in the country find their origins in the early days of independent Brazil. According to attorney Felipe Dias dos Santos, “[The] Imperial Charter of 1824, the first Brazilian constitution…which had liberal content and was marked by individualism, guaranteed the right to property in its most absolute form.” At that time, however, this right was not equally applied. The law codified the existing social practices of the early 19th century in which “real estate was acquired in an informal, unequal and concentrating manner, always privileging the interests of the Portuguese [or Brazilian] Crown and those linked to it by affective and social traits.” This elitist right was included and strengthened in subsequent constitutions, although other rights and guarantees to benefit middle- and lower-class communities were also inserted.
On the contrary, the right to housing in Brazil is quite young, codified only at the start of the 21st century. This means that before 2000, wealthy Brazilians had the right to own and defend various properties, including unused and unoccupied spaces, while those experiencing homelessness were not guaranteed habitable space nor any legal mechanism for claiming one. To address this problem,the government passed a law called the City Statute in 2001 that instituted a new principle: the “social function of property.” According to anthropologist and expert Stella Paterniani, this principle establishes that “all property must have a social function: residential or commercial. Therefore, an abandoned building is considered to be in breach of this principle of the Constitution.” Despite this, as Paterniani points out, around 300,000 rooms remained empty in abandoned buildings and around 130,000 families remained homeless in 2010 in São Paulo alone. However, these families were determined to fulfill their right to housing, even if the government did not.
Occupations: A Response to Government Inaction
With the government’s inability – or refusal – to apply the law, individuals and families experiencing homelessness have sought to find adequate housing by occupying buildings that do not fulfill any social function as required by law. Although the housing movement has established occupations in downtown São Paulo since the 1990s, the number of occupations grew substantially in 2003, in the wake of the City Statute, and in 2010, as the number of individuals experiencing homelessness grew in response to financial and housing crises. Unsurprisingly, these occupations have remained controversial in São Paulo, especially among conservative elites who generally view the housing movement in a negative light. However, these occupations have also become controversial within the movement itself. A recent study concluded that only 57.4% of the movement activists interviewed in São Paulo had a favorable opinion of occupations. Of those who hold an unfavorable opinion, violence and lawlessness was the most common concern. Interestingly, another major concern amongst opponents (25.5%) was the belief that the occupations disrespect the rights of private property owners. Other respondents felt that the occupations were too extreme and that dialogue would be better.
Government officials and property owners have refused to engage in meaningful dialogue with the housing movement and failed to apply the law determining the “social function of property”. Thus, there is no other avenue for many activists seeking adequate housing. In deciding which buildings to occupy, movements do not target recently vacated properties, but those that have been vacant for 15-20 years. While it is true that these abandoned buildings present a physical risk to occupants, there is no doubt that these “private” properties are not being used by the owners despite the City Statute.
Despite this disuse, however, building owners often try to evict squatters through legal means, claiming that squatters violate their right to property, putting the right to housing and the right to property into conflict.
Reintegração de Posse
In repossession (Portuguese: reintegração de posse) lawsuits, building owners ask the courts to defend their rights to property by ordering the removal of the occupation. Occupation residents and housing movement representatives also have the ability to defend their actions citing the law, usually appealing to constitutional housing rights. However, the judiciary is often predisposed against these movements, failing to consider and discuss all the reasons and arguments that favor them. For example, a 2016 study found that only 15.63% of the analyzed cases actually considered the owner’s failure to maintain the social function of the property.
Tellingly, only 34.37% of the cases studied refer to housing as a human right. Overall, this right is obviously seen by the judiciary as “concessive subordinate.” That is, a right that “only presents formal validity until it is contrasted with the right to property.” This creates a foundational problem in the interpretation of human rights in Brazil. In theory, human rights, because of their fundamental connection to human dignity, are accorded to all human beings without significant limitation.
Thus, to assert that the right to housing is limited by the right to property lays bare the reluctance of the Brazilian judicial system to defend human dignity as a foundational principle of the law.
The justice system occasionally decides in favor of the occupants and converts buildings into affordable government housing. However, the vast majority of repossession lawsuit outcomes demonstrate the failure of contemporary laws to revolutionize the unequal political, social, and economic systems rooted in Brazilian history.
Why it Matters
The current judicial practice of repossession represents a critical issue not only for the housing movement, but for almost all progressive social movements in Brazil. Since the courts consistently uphold the right to property over the right to housing, this shows that the Brazilian government is willing to sacrifice the basic human needs of the marginalized for the benefit of the rich, and demonstrates the lack of equal citizenship. Despite social movements’ struggle for meaningful democracy and the enactment of progressive legislation in recent years, law enforcement now fails to guarantee and respect the movements’ modern vision of citizenship, which includes access to housing and universal fulfillment of basic human needs. As political scientist Evelina Dagnino writes, “This new citizenship [is] seen as going beyond the acquisition of legal rights: it [depends] on citizens being active social subjects, defining their rights, and struggling for these rights to be recognised.” Undoubtedly, housing activists define their rights by and fight for their recognition with the establishment of occupations. It is this progressive form of citizenship that creates true democracy in which government structures protect marginalized communities and create equality.
However, this form of citizenship has been appropriated by elites with neoliberal goals, effectively denying equal rights to all and maintaining unequal norms. Indeed, this neoliberal interpretation of citizenship makes solving inequality and poverty a philanthropic issue, not a state responsibility. This further denies the guarantees promised by law to marginalized communities. As repossession lawsuits demonstrate, the strong alliance between the government and the elite is sufficient to protect this appropriation and elevate this neoliberal interpretation of citizenship. Thus, while the Brazilian constitution contains a number of rights designed to challenge and rectify the history of inequality, the structures of government preclude meaningful reform.
In conclusion, creating new rights and legal protections are not enough. If any fundamental human right collides with a more established ‘traditional’ right, the traditional right will typically prevail in the Brazilian justice system. For social movements to realize true democracy and citizenship for all Brazilians, far-reaching institutional reform is necessary.
Cover photo was taken by the author at an occupation in Downtown São Paulo in July 2022.