CNJ resolution may hinder repossession

The issue of a resolution by the National Council of Justice (CNJ) has aroused insecurity in rural areas, as it can make life difficult for rural producers who have invaded areas. According to lawyers, the effects of the measure could be a longer repossession and a “veiled incentive” to collective invasions. Deputies are working to propose bills that discourage invasions and guarantee legal security for landowners.

CNJ Resolution 510/2023, published on June 26, created Commissions to deal with Land Solutions at the national and regional level, within the scope of the CNJ and the Courts. Through the resolution, protocols were established for actions involving evictions or repossession.

The CNJ has a history of establishing norms that exceed the decisions in the highest instances of Justice, such as the Federal Supreme Court itself.

The measures proposed in the resolution are a warning sign for lawyers who deal with land law claims. They point out the complexity of the proposed actions, as well as a possible hidden stimulus to collective invasions.

On the other hand, the president of the CNJ, Minister Rosa Weber, stated, in a seminar on the subject, that the creation of commissions for the resolution of land conflicts must “guarantee legal certainty, predictability, efficiency and, above all, the minimum uniformity necessary to face the issue without neglecting regional peculiarities”.

Resolution provides for holding hearings and registration of invaders before repossession

The text of the resolution provides for mediation or conciliation hearings to be held at any stage of the process, however, it also points out that the dispossession or disturbance (loss of total or partial ownership of the property) must have occurred more than a year ago. With the holding of the hearings and the entire protocol provided for in the resolution, the CNJ hopes that “judicial decisions on repossession are fulfilled in a fair manner and concerned with social issues”.

Among the measures contained in the resolution, the creation of an action plan and a vacancy schedule is foreseen. The action plan provides for the registration of property invaders, in addition to identifying their socioeconomic profile. The registration, according to the resolution, should be done by the city halls, with the aim of relocating them as well as forwarding them to social assistance agencies and housing programs.

With the creation of national and regional commissions to seek solutions to land conflicts, technical visits to conflict areas were also planned. The resolution stipulates that the action of the Regional Commission must take place within 90 days, which may be extended for a period that is not specified in the document.

Also according to the text, the parties to the repossession actions will be notified of the visits, including a social movement or neighborhood association that supports the invaders.

Effect of the measures proposed by the CNJ may be a “veiled incentive” for invasions

Although it has no direct connection with the provisions of the resolution, for lawyer Néri Perin, the effect may be an increase in collective invasions. Also, repossession may take longer.

“There is a kind of veiled incentive for collective invasions. Associations are being created to give collective land invasions an air of collectivity. And, not infrequently, they are made to invade and “sell – demand” high values ​​from the owners, precisely because the effective reintegration will delay. It is a serious deviation, which benefits turpitude. But, evidently, it cannot be declined directly to the resolution, but to the failure of the human being”, said Perin.

The lawyer and counselor of the Brazilian Rural Society (SRB), Francisco Bueno, points out that the resolution will bring complexities and will aggravate legal uncertainty in the countryside. “By establishing complexities for the solution of agrarian conflicts, the Resolution can bring transaction costs that generate insecurity for the agribusiness investor and favor the action of violent movements of political demand, aggravating the scenario of legal uncertainty in the countryside”, evaluated Bueno.

The practical effect of the measures proposed in the CNJ resolution cannot yet be gauged because it is a newly published rule. In addition, the resolution provided for a period of 30 days for adequacy and creation of the Regional Commissions for Land Solutions.

For agrarian lawyer Paulo Roberto Kohl, the measure is audacious. “It is known that some Courts already act in this sense, such as the Court of Justice of Paraná and Santa Catarina […] However, the reality in the country is very diverse, with regional, budgetary and administrative particularities specific to each state of the Federation”, highlighted Kohl.

Kohl also states that the resolution did not revoke the crime of dispossession of possessions provided for in the Penal Code, nor does it prevent immediate effort – the right to self-protection of possession – provided for in the Civil Code. “The resolution also cannot serve as an incentive for new irregular occupations or the artificial creation of consolidated situations, preventing any judicial order for repossession,” said Kohl.

Judge may decide on referral of repossession to Commissions provided for by CNJ

Although the CNJ resolution created commissions to assist in the processes of repossession, it will always be up to the natural judge of the cause to decide whether or not to forward the process to the Land Solutions Commission. The highlight is the agrarian lawyer Paulo Kohl. The resolution of the CNJ regulates the provision already set forth in the Code of Civil Procedure on holding mediation hearings prior to the repossession measure in collective occupations. But the creation of commissions is an innovation.

Speaking on the subject at a seminar promoted by the CNJ, Minister Rosa Weber emphasized that the commissions do not have decision-making power in the judicial process, nor are they authorized to interfere with the independence of the judge in the case. “They can collaborate with the magistrate or magistrate of the process, with regard to the establishment of a proper procedural and negotiation environment for a structural intervention in the land dispute on trial”, said the minister.

As for lawyer Francisco Bueno, although the hearings are already scheduled, the new procedures may result in more delay in the processes. “By imposing new decision-making procedures, including hearings that cannot always be scheduled in an urgent schedule, the risk that runs is of delay in the jurisdictional provision and perpetuation of a de facto state incompatible with legal security and the right to property”, highlighted Bueno.

Kohl also points out that the text of the resolution points out that it is not all and any repossession that admits the intervention of the Commissions. “According to the text, intervention is allowed in those related to properties for collective housing or productive areas for vulnerable populations”, explained the agrarian lawyer.

Members of the MST CPI point out delay and relativization of property rights

The CNJ resolution aroused the concern of deputies who are members of the Parliamentary Commission of Inquiry (CPI) of the Landless Rural Workers Movement (MST) opposed to land invasions.

Deputy Luciano Zucco (Republicanos-RS), president of the MST’s CPI, assesses that the resolution could bring legal uncertainty to the countryside. “In my opinion, the right to property cannot be relativized. If the rural producer holds the title or deed, that is, the documentation that gives him ownership of the land, he is legally protected from any attempt to expropriate the property. Thus, if his area is invaded, repossession must be immediate. Making the Constitution more flexible is dangerous and only creates more legal insecurity in the countryside”, said the congressman from Rio Grande do Sul.

In addition to him, deputy Kim Kataguiri is concerned about the action plans for the fulfillment of repossession. “This writ of repossession can only be issued after the city hall registers these people and places these people in a residency program. The right of ownership has ended. You have been invaded. But what do you have to do with a city hall housing program for a guy who invaded your property? And what if City Hall takes 1 or 10 years to make that registration?”, questioned Kataguiri.

Legislative solutions will be proposed by deputies of the MST CPI

In view of the competence to legislate on the subject, the CPI of the MST must, at the end of the work, deliver a series of bills to guarantee that invasions are discouraged and the invaders duly punished. Among the motivations for the presentation of new bills is the creation of a kind of safeguard for property invaders.

This issue was pointed out by Kataguiri as one of the effects of the CNJ resolution. “While we are investigating criminal invasions, the CNJ is giving more protection to those who invade than to those who are invaded. This type of conduct and this type of legal measure must be combated by the CPI [do MST]because the CPI also has the legal competence to propose a legislative solution”, added the deputy.

Zucco claims that the Commission will present a set of bills, called the “Zero Invasion Package”, to curb such conduct. “At the MST’s CPI, we will be presenting in the final report a set of bills that aim to punish more rigorously the invasions of private productive properties. Among the suggestions, we highlight the proposals that exclude invaders from programs related to Agrarian Reform, land regularization and lines of credit aimed at the sector”, said the president of the CPI of the MST.