New Civil Code would make it easier for landless people to take over rural properties

In addition to relativizing the concept of family and facilitating abortion, the proposal for the new Civil Code commissioned by the President of the Senate, Rodrigo Pacheco (PSD-MG), also weakens one of the pillars of a liberal democracy: the right to property. Changes presented in the final report of the commission of jurists in charge of “updating” the law favor the seizure of rural properties by invaders and open a loophole for land and properties to be expropriated without any compensation to the owners.

As shown by the People’s Gazette, the proposed text promotes a broad reform in the law that defines and governs the relationships of people in society, providing for the rights of the individual within the family or community, as well as companies in a market economy. But the fundamental right to property, enshrined in the Constitution, could be weakened if the proposed changes were approved by the Legislature – the text is still in its embryonic phase and has not begun to be analyzed by parliamentarians.

Experts following the discussion were surprised by two changes.

The first is in article 1,210 of the Civil Code, which regulates the rights of those who own land, for example. The current text says whoever owns it can keep it “in case of disturbance, returned to the embezzlement, and insured against imminent violence, if they have a fair fear of being molested”. It means that if someone threatens or actually takes it, he can stay in it or take it back, and must be protected from any act of violence in these cases.

In these situations, the current law still gives the owner the right to maintain possession of the property “by his own strength, as long as he does so soon” and that “acts of defense, or effort, cannot go beyond what is indispensable to the maintenance , or restitution of possession”.

The novelty is the inclusion of a new section, according to which the right to maintain possession in these cases can be exercised “collectively, in the case of a property with a large area that is owned by a considerable number of people”.

It is the loophole for landless movements, especially those who come to occupy someone else’s property, claiming to own it, to prevent themselves from being expelled. The device could worsen land disputes, which have increased again since last year, with the support of the government of Luiz Inácio Lula da Silva (PT) for these movements.

The other change is in article 1,228, which deals with property. The proposed text maintains the prediction that the owner may lose his land if it is taken over in an “uninterrupted and good faith” manner, “for more than five years” and by “a considerable number of people, and they have carried out, jointly or separately, works and services considered by the judge to be of relevant social and economic interest”.

It turns out that, under the current Civil Code, in these situations, the owner is compensated by the State, if the judge considers that the occupants of the land deserve to appropriate it, if he understands that it was unproductive and its occupants produce or need it to survive. The proposal from the jurists brought together by Pacheco opens up the possibility that the owner will receive nothing.

A new section says that the judge will set a “fair compensation”, which will be owed to the owner by the occupants. The problem already foreseen by experienced lawyers in the area is that, in most cases, these occupants are not in a position to pay compensation, especially in the case of landless invaders. In practice, therefore, they would never pay.

The proposal even provides for the possibility of public authorities paying compensation to the owner who lost the land. But this will only happen if the occupants are “low income” and the public administration acts in the judicial process. If the judge in the case considers that the State should not join the action, the owner will lose the land and will not be entitled to any reward.

The possibility of the owner not being compensated goes against the provisions of the Constitution, which treats property as a fundamental right. Article 5, item XXIII, says that in the case of expropriation “for public need or utility, or for social interest”, there will be “fair and prior compensation in money”. Land expropriated in favor of landless workers is part of the agrarian reform policy and, therefore, the measure is justified by “social interest”.

Strictly speaking, this occurs when it is proven that rural property does not fulfill its “social function”, a precept also contained in the Constitution, and which is configured when, simultaneously, it has rational and adequate use; adequate use of natural resources and preservation of the environment; complies with labor legislation; and have exploitation that favors the well-being of owners and workers.

In practice, the Landless Workers Movement (MST) occupies other people’s land, claiming, often maliciously, that it does not fulfill its social function. Since last year, the movement has intensified the invasions, under the pretext that the new government has been slow in acquiring land to settle landless families. Every year, the MST promotes Red April, with protests, camps and farm invasions. The expectation is that this year the acts will be more numerous than last year.

Experts say changes bring legal uncertainty

For Paulo Roberto Kohl, a lawyer specializing in agrarian and environmental law applied to agribusiness, the change in article 1,228 relativizes the right to fair and prior compensation, guaranteed by the Constitution. “Who will pay the compensation? Possessors in good faith? Who will define the concept of ‘low-income earners’? In cases where the hypothesis of low-income owners is not verified, wouldn’t this be expropriation for social interest? From this perspective, I understand that it could generate legal uncertainty”, he says.

For Marcelo Macedo, a lawyer who works in the field in Rio Grande do Sul, “there will be a devaluation of registered property, and an appreciation of possession, with an emphasis on the application of the social function, and this, added to the discretion granted to the Judiciary, opens up gaps to abolish values important.”

He understands that the changes leave open terms such as “property of extensive area”, “considerable number of people”, “works and services considered by the judge to be of relevant social and economic interest”, giving the judge in the case broad discretion to decide the consequences of invasions that end up taking over rural properties.

“The lack of guidelines in the text of the proposal is worrying, the task of which will fall to the judges, running the risk of the reasons for these decisions being applied and/or labeled with a political and ideological character”, says the lawyer.

The proposal to review the Civil Code in the Senate was formulated by a group of jurists brought together by Rodrigo Pacheco in September last year. In six months, they produced a 293-page text, with changes to more than a thousand articles of the current Civil Code, approved in 2002. The previous code was from 1916 and its amendment was discussed for more than 40 years.