PROPERTY: LEGAL ASPECTS AND PREVENTIVE SOLUTIONS

By Henryc Vasconcelos, intern in the Civil Law practice area, under the supervision of partner Rayane Lins.

1. Introduction

Real estate ownership is broadly governed by property law. Its functionality, however, is limited by collective and legal interests, involving a network of responsibilities that impose on the owner not only regulatory compliance but also a proactive stance focused on fulfilling related duties and preserving urban order.

This article analyzes the framework of rules that govern property use, identifying the obligations imposed on property owners and outlining practical measures for compliance and prevention that help ensure legal security and reduce the risk of sanctions under current legislation, through technical and contractual procedures.

2. Real Estate Property – A View from the Perspective of Current Legislation

To begin with, it is important to clarify the structure of certain rules related to property.

The Brazilian Federal Constitution establishes the right to individual property aligned with collective well-being as one of its foundations, as stated in Article 5, XXII and XXIII, conditioning its exercise to a social function. Accordingly, property owners must use their assets in a manner compatible with urban development and environmental protection.

At the infraconstitutional level, the Civil Code regulates such limitations. Article 1,228, §§1 and 2 establish that property must fulfill an economic and social function, and it is essential that it does not harm third parties. Furthermore, Articles 1,277 to 1,313 introduce the right of neighborhood and reinforce the relational character of possession and ownership, assigning the owner duties of prudence, safety, and moderation in the use of the property.

In this sense, property also finds limits within its socio-environmental function. Under Article 225 of the Federal Constitution, it is the duty of all — including property owners — to defend and preserve the environment for present and future generations. From a productivity standpoint, rural property only fulfills its function if it makes proper use of available natural resources.

Therefore, both urban and rural properties must comply with the environmental rules set forth in Law No. 6,938/1981 (National Environmental Policy), Law No. 12,651/2012 (Forest Code), and related state and municipal laws. Failure to comply with these rules may result in administrative, civil, and criminal liability, as established by Law No. 9,605/1998 (Environmental Crimes Law).

The City Statute (Law No. 10,257/2001) regulates Articles 182 and 183 of the Federal Constitution, establishing guidelines for urban development policy and creating instruments to ensure the social function of urban property. This legislation grants municipalities the power to condition land use and occupation to the fulfillment of this social function. Therefore, failure by the owner to comply with such norms may result in administrative and tax sanctions.

The Urban Land Subdivision Law (Law No. 6,766/1979) imposes technical and environmental parameters for the division and subdivision of areas, preventing irregular occupations and ensuring minimum infrastructure conditions. Likewise, Law No. 13,146/2015 (Statute of Persons with Disabilities) and ABNT NBR 9050/2020 establish accessibility obligations in buildings for collective use, reinforcing the social role of property.

Additionally, regarding rural property, the Federal Constitution itself establishes conditions for its exercise, specifically in Article 186, particularly concerning its economic purpose and compliance with environmental and land regulations. Regularization of such property must comply with the provisions of the Land Statute (Law No. 4,504/1964), Law No. 8,629/1993, which regulates the statute, Decree No. 59,428/1966, and the guidelines of the National Institute for Colonization and Agrarian Reform (INCRA).

In summary, the legal framework imposes on property owners an obligation of active compliance, as mere abstention from causing harm is insufficient. It is a positive legal duty requiring the owner to act diligently and preventively, consistent with constitutional values.

3. Strategic Actions

Preventive and preliminary measures are essential to avoid the application of sanctions. It is crucial to analyze the risks arising from the legal status of the property, as well as urban, documentary, and accessibility requirements and compliance with established technical standards.

Assessing the status of a property enables the identification of possible debts and irregularities associated with ownership. Real estate due diligence — through examination of the property’s registration, obtaining certificates proving the absence of legal proceedings or restrictions — mitigates the risk of judicial liens and asset losses.

Moreover, a public deed and property registration alone are not sufficient to guarantee the regular urbanistic and documentary standing of the property. Compliance with zoning regulations applicable to the area must be verified, ensuring conformity with construction criteria such as height, setbacks, occupancy rate, and permeability, among others established in the city’s master plan, thus avoiding administrative sanctions.

Finally, properties intended for collective use must comply with the requirements set forth in Law No. 13,146/2015 (Statute of Persons with Disabilities) and the technical standards of ABNT NBR 9050 to ensure the practical enforcement of the rights of persons with disabilities. This includes the construction of access ramps, adapted restrooms, and tactile signage, promoting spaces accessible to all.

Analyzing urban, documentary, accessibility, and environmental protection norms is not only a legal requirement but also an indicator of corporate responsibility and property management. Such measures contribute to the company’s legal security, preventing penalties, shutdowns, and financial losses. Compliance of the property with current laws demonstrates institutional commitment to legality, sustainability, and social inclusion.