ORIGINAL ARTICLE
COSTA, Josécley Dos Santos [1]
COSTA, Josécley Dos Santos. Definition of the concept of Real Estate in the Doctrine and the Constitutional Legal System – Brazilian and international civil liability: Article 1.225, Item I, of Law 10,406 of January 10, 2002, instituting the Brazilian Civil Code. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 05, Ed. 12, Vol. 08, pp. 24-42. December 2020. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/law/real-estate, DOI: 10.32749/nucleodoconhecimento.com.br/law/real-estate
SUMMARY
The offer of this craft aims to define the concept of real estate. Tracing a general historical evolutionary panorama, from prehistory to contemporary days, referring to Real Law, on a global scale, relating the historical reasons, social and economic systems to the relation of real estate property, which led its appearance and development to the conglomerates that established the cities. Including the creation of its concept in a national and international nature, ordered by systems of governments in their governmental regimes, with an interdisciplinary focus, providing not only basic, more also understanding the factors of the construction industry, motive of the economic vector of the wagons of small economies, public and private properties through daily life, visualizing the trajectory of a researcher’s observation to the result of this work , from which it was conducted in a logical sequence. The methodology was based on bibliographic research, an approach on the problem, using the methods: inductive, historical procedure, with that of real life observation, corresponding to the delimitation of the theme, leading to a specific path, that is, to define the concept of real estate property. Going from the most particular findings, to the laws and doctrinal theories, in an ascending communication. The question and the problem of this work lie in the question: what is real estate? It is worth elucidating the right of the owner and his faculty, present in the Brazilian Civil Code in force. The origin of real estate in history arises in the Old Ages, in the Middle Ages arises the faculty of the owner, among other appearances, such as: condominium, dichotomy: public and private lands, possession, nomenclature: Real Law, etc. In several Constitutions, Codes and International Legislation, the definition of this concept was not found.
Keywords: Real Estate; Brazilian law; international.
1. INTRODUCTION
The present work aims to define the concept of real estate, which is customarily the widest right of humanity in relation to subjective property rights. Becoming a Real Right by primacy around the scope in all the Rights of The Things of the Brazilian Civil Code, following as a fundamental, essential and indispensable right, present in Article 17 of the Declaration of Human and Citizen Rights, according to which every human person has the right to have his real estate, his residence, where he can be home to his family in harmony with freedom , the peace, life and security that the home embraces among people. Real estate, i.e. private property, is exposed and inaugurated in the caput of Article 5 of the Magna Carta of 1988, secured and expressed in item XXII. Real estate is the principle of economic order as determined by item II of Article 170 of the Federal Constitution of Brazil of 1988 (GUERRA, 2011).
It is a right that, in itself, does not safeguard the freedoms and autonomy of civil rights, to make it right and infallible, ratifying this effective instrument, which creates an autonomous circle with the owner by reciprocal state review, without being afflicted by violations of society, it is necessary that the holder fulfills the social function of real estate property, but nevertheless , this noble right does not have until yesterday a concept that defines it.
In Rome, emperor Justinian approaches the definition of the concept of real estate, defining the concept of the right of owner, on which Brazilian civil law is based. The Brazilian Civil Code, made by Professor Miguel Reale, follows the same understanding of Roman law, date vênia does not define the concept of real estate, the objective of this Scientific Technical Article.
And, because it is an unprecedented theme, it will be the occupation of this Graduate Course Completion Work, (MBA) in Real Estate Law. To account for this methodological investigation, the methodology applied to this study was based on bibliographic research, a broader approach on the problem, using the inductive method, approaching phenomena and leading to a specific path, that is, defining the concept of real estate.
Going from the most particular findings, to the laws and doctrinal theories, in an ascending communication, using the method of the historical procedure together with that of real life observation, corresponding to the delimitation of the theme, that is, it is, it is worth saying, the Definition of the Concept of Real Estate Property, inherent article 1.225, item I, of Law 10,406 of January 10, 2002, Instituting the Brazilian Civil Code.
Theoretically, this study was mainly based on Roman law, alien laws and especially the masters and jurists of Western Real Law, Professor Orlando Gomes, Professor Miguel Reale, Emperor Justinian, Karl Marx and Proudhon, when dealing with real estate law.
The Right of Things brings the Real Right, which in turn is the one responsible for the legal relationship of a person to a material or immaterial good, is a right of a holder who falls on the thing. Article 1,225 of the Brazilian Civil Code of 2002, brings a tax ing list on real law, we will deal in particular with property, inherent to item I, that is, real estate.
The right to property of real estate property, it is worth elucidating, the right of the owner, takes place according to article 1.227 of the Brazilian Civil Code in force, which says that: “The real estate rights constituted, or transmitted by acts between the living, are only acquired with the registration in the Registry of Real Estate of these securities (Arts. 1,245 to 1,247), except for the cases expressed in this Code”, (VADE, 2002).
Article 1,228 of the same code brings to the owner’s faculty about real estate when it says that: “The owner has the right to use, enjoy and dispose of the thing, and the right to return it from the power of whoever unjustly owns it or holds it”, (VADE, 2002).
We will deal specifically in the hope of defining the concept of real estate, because the Brazilian Civil Code has hidden the concept, because it understands through quantum metaphysics that no one creates anything at least discover by scientific research, taught by René Descartes.
The Civil Code only informs the condition of acquisition of the real estate property and the faculty of the owner, when dealing with Real Law. At some point when dealing with the right to property of real estate, it would be of great value to the scientific community, understanding, because it is a fundamental and human right, the definition of this concept is of paramount importance when instilling, what is real estate?
Depending on the interpretative need, it is that the legislature did not explain it, so this work will be occupied with bringing up in the doctrinal and legal field the due and much expected concept, in a current and modern way. The work will be divided into three stages the first will bring information in general, in the second stage will begin with an evolutionary historical approach to real estate, starting from the origin to the present day, dealing in each age to the evolution of this right in the face of humanity, and put an end to the conclusion of the concept of real estate, with a constitutionalist and civilist prism , the task of this work.
2. HISTORICAL EVOLUTION
Through darwinian reasoning, at the beginning of mankind, when prehistoric man inhabited the land, there was no notion of property, let alone real estate. They lived in a nomadic way in small family groups, fruit collectors and animal hunters, did not establish territories. After a certain time, groups of families became clans, these began to populate and settle in territories demarcating them, thus began the first ancient cities. On the territory of Europe came the first City-States, for example: Sparta, Celta, Greece, Athens and Rome; in the Middle East: Mesopotamia, Israel, Syria and Babylon, Africa and Egypt. Thus, given this requirement, among others, it carries the change of age in history.
The origin of real estate in the history of mankind arises in the Ancient Age, through possession in Greco and Roman society, and served as a pilaster for having connection with religion, according to Fustel Coulanges, in his work La Cité Antique (The Old Town). Their dwellings had an intimate and familiar character, always protected by the gods of cities, like the goddess Athena, the Parthenon of the Greek polis, the City-State of Athens. Described by Homer, as a walled city that at the top was the residence of the gods, the temple, and at the bottom the residences of humans, when it depicts the Aprocoles, “sprouts the urban condominium”. (Our Griffin). There were gods of homes, a domestic god who consated real estate, the house; a stranger who goes beyond the place of the altar would commit serious wickedness, if he did not have the authorization of the head of the family, (GUERRA, 2011).
It is perceived that the relationship of real estate law was done in a religious way, there was no talk of social function of the property, the function of the domus had a religious character. In the ancient period of few discoveries, Théos, god in Greek, answered the questions, for ancient times served as protection of the inviolability of the domicile, that is, of the home over divine protection. In the Ancient Age it was very common to syncretize law and religion, because of this fact narrated above arises the inviolability of the domicile, which is present in item XI of Article 5 of the Political Charter of 1988 of Brazil (Gryphon our).
In Rome, the Romans did not define real estate. In fact, they defined the right to property. They come to the Middle Ages, based on rewritten laws of earlier emperors. Justinian compiles several sparse laws and creates the first Civil Code of humanity of the Western world, called Corpus Iuris Civilis Romani. Consisting of four books: (Institutiones, Codex, Novella and Digesto).
Roman jurists extracted the concept of Property Law, given by the owner’s faculty. “Thus, based on a rewriting of Constantine (C. IV, 35, 21), relating to business management, defined the owner as suae rei moderator er arbiter, (regent and arbiter of his thing).” (GUERRA, 2011, p. 30).
The Roman Empire at this time held a vast territorial extension, in fact it was not in Rome, but in Constantinople at the request of emperor Iustinianus Augustus (Justinianaugustus), in the period corresponding to the middle of the sixth century defined the concept of owner. Another fragment of the Digesto translates the right of possessor, corresponding to the possessor of good faith, deduced that the possession would be:
Jus utendi et abutendi, which would be the right to use and abuse their thing, and another Law of the Digestin which freedom is defined, resulted in the application of this concept to property that then would be: Naturalis in re facultas eius quod cuique facere libet, nisi si quid aut ui aut iure prohibetur, translating: natural faculty to do whatever you want on the thing , except for what is sealed by force or law, (GUERRA, 2011, p. 30).
Thus, the cities are, circumstantially and successively, in the face of the sincreetic relationship with the law together with religion, both inherent in property, concomitant with the owner of private real estate for residential purposes, prior to the emergence of commerce and urban centers development was practiced in rural real estate, by agriculture and the breeding of livestock.
The conglomerate of common residential properties, after the rural exodus of feudal decline, which we will often deal with later, was the gens, for the formation of the first medieval cities, it is worth mentioning that there were cities built to the ancient age, such as: Rome, which at this time had water distribution through pipelines and basic sanitation. The urban area consisted of the demarcated area where the government headquarters was located, while the rural area was the small fractions of land around this central area, where the peasants lived in rural properties.
Generally it was a family good, in the house inhabited the family members, households and servants, was from here inalienable. At this time the property was collective in nature, a kind of condominium in fact, because of the property belonging to more than one person, hence the idea of several owners about the same good, the condominium is born (Gryphon ours).
The feudalism of the Middle Ages consisted of a land system, given by the exploitation of the rural lands of the monarchs, which acquired after heavy fighting, arises the rural residential condominiums, where the vassals built their residences between the walls of the reign, near the castles. A period of great misery and violence after the event of the Holy Inquisition, which plagued the common people, of whom they lost their property, leaving in Europe, only the lands of the Church and the kings, hence the terminology Real Law (Our Griffin).
Basically the landowners were the monarchs and the church, a society that had as a regime of government the absolutist monarchist, power focused entirely on the hands of the monarchs and the clergy, an agrarian subsistence economy, based on servile work, where the land was granted by the feudal lord to the vassal, in exchange for obligations. It was a political-economic-social-agrarian system that took place in Europe.
The feudal lords were the owners of large tracts of land, while the workers were called servants, a vassal ceremony was held, where the so-called feudal lord passed the possession of the land in exchange for agricultural production. The feudal system required the production of food through a social agriculture of the kingdom, in the drive of fostering the need for subsistence of the inhabitants of the fiefdom. Thus, the genesis of the social function of property (Gryphon nosso) is germinated.
The territory of the Fief was divided into three parts. The first was dismembered and demarcated, and was called dominium, it was the part of the land reserved exclusively for the feudal lord and worked by the servant; the second common was destined for the forests and pastures, of which they could be used by both the lord and the servant; while the third land of the meek servile, which was the part that corresponded to the servants, appears the dismemberment (our Griffin).
Because of this exploitation of insums from the land, the common property belonging to the group of individuals, who belonged to the families, the other belonging to the monarch, arises the two characteristics of Roman property, thus the so-called dichotomy: public and private lands (Gryphon ours).
The Middle Ages rejected the exclusive ownership of Roman law and became marked by the feudal system, an economy based on agrarian exploitation, agriculture was the activity that generated the social wealth of the time, in past views, being landowner, was synonymous with wealth.
Given the exploitation of the monarchs on the vassal, during a certain period of time, in which by contract the peasants were left over from the agricultural surpluses, of which they were sold in the medieval free fairs. These gathered with their pecúlios extracted from their labors rebelled against the king, causing the decline of the feudal system, starting a new emerging class with the epithet of bourgeois.
Allied to the Enlightenment, who refuted the model of government, at the time added to the problematic remnants of the death sentences of the Court of the Holy Inquisition, where kings with clerics took the lands and lives of people of medieval European society, came the revolt, where it subsequently occasioned maritime expansion. From the 15th to the 18th century, countries such as Portugal, Spain, France and England sought the possession of new lands, including in the Americas. Europe was experiencing a time of epidemics, lacked manpower in the fields, declined feudalism, wars were left over and gold was lacking, trade that had begun a century ago would suffer its first depression.
3. REAL ESTATE PROPERTY IN BRAZILIAN LAW
In colony Brazil we had the hereditary captaincies, which brought the same objective of agricultural production imported from the feudal system, by the Portuguese crown. The land was divided into lots or glebes of large territorial extensions, all land destined for agricultural production that sought the best use of the soil, bringing the same function of European agricultural production, where the European market was promoted with commodities. In particular, these reports allude to the colonial period, when Brazil had a huge territory free to be colonized, providing an incentive for the pathof the clearing and colonization of the interior.
However, this colonization took place in a disorganized way, regarding the distribution of soil referring to the sea coast, entering the interior of The Brazilian territory, there was no precision in the demarcation of the land, from which it was being exploited by the Europeans, who instituted the colonial model. They granted gigantic environmental real estate properties, an immense Atlantic forest was available for deforestation, in the hope of transforming into rural properties, now urban, from which they reached the border of the states of Goiás, Mato Grosso, Tocantins and Maranhão, called this large geographic territory of manatees.
Geographically, we observe the clippings of territories inherent to the terrestrial globe in geographical demarcations, where there have been conflicts throughout history with a demarcation of lines in curves, that is, not tangents. Because the possession has a character of dynamism, it was dilated and decreased, although there was the geodesical technology of territorial marking, at this time, this will not occur on the Island of Vera Cruz, Brazil. In other regions that did not conflict, there were demarcations in tangent, straight lines. A peculiar example is the nation of the United States of America (USA), that the coast of the Atlantic Ocean, where the English arrived there was a subtly non-tangent demarcation, in curves, while the west, towards the shores of the Pacific Ocean, the demarcations are predominantly in straight lines, tangent, being able to affirm, which are geometric figures called regular and irregular polygons, inserted in geographical maps.
Manifesting the Modern Age, Real Estate becomes a fundamental right, a legal institute inconceivable to private law, becoming a civil right, inherent to family and business law. A few years pass and the right of real estate property is part of the economic and financial order.
The Modern Democratic State of Law, has its transition frontier the face of the Absolutist Monarchical State of the eighteenth century, and which led to changes in social relations. Historians consider as a milestone of this age the fall of the bastille, concluding the French Revolution. The Modern Age is born simultaneously with the Enlightenment, and consequently, bursts the bud of the Modern Democratic State of Law, advocated by the rights of equality, fraternity and solidarity, integrating them the right of ownership of private real estate.
The immediate projection in the legal order, along with the individualism that marked the civil codes in the past centuries. As a reaction of the Enlightenment to the privileges of the feudal system, it allowed the individual to isolate himself from others in the use, enjoyment and enjoyment of his goods, in an absolute and exclusive way. (GUERRA, 2011).
Roman law initially used the term dominium and then proprietas, as a person’s power over his real estate, extending to movable property and even people. Subsequently, the Contemporary Age came, to our times, current period of Western history, bringing the disordered growth of urbanization, in the face of real estate rights, building slums and ghettos, irregular constructions, clandestine allotments, lack of water supply and basic sanitation.
Landslides, floods, illegal occupations, pulls without a basis for support, sewage in the open sky, environmental disrespects, in decades resulted in numerous problems with which the populations of Brazilian cities, to this day, did not speak of laws of urban guidelines. However, with the constant population increase, the land became increasingly rare and costly, arising from then on the social problems related to it, highlighting the lack of housing, agrarian conflicts and speculation of the real estate market.
In the course of history several were the understandings, more in fact, first appears the possession of real estate, the advent of real estate property, it is worth saying for a better elucidation, the right to property of the immovable property is presented in the Estado Novo, as this, being at the service of citizens, it is worth saying the Democratic State of Law. Creating institutions of information counters on registrations of real estate called Real Estate Records Registry, post-bureaucracy, offering legal certainty, when everyone knows that no one can successfully discuss the ownership of the owner after the registration of public deeds, arises in fact, and by law, the property of real estate property (Our Griffin).
The property brings us closer to the domain, and may be in the sense of what is proper to someone, or something is the property of someone, and may be a property of which it is distinct from another property, a rural or urban property, a land, a building, a house, a site, a farm, etc.
In terms of the 20th century, the first Brazilian metropolis arrives in 1950, in the city of São Paulo. There was at that time a great rural exodus in Brazil, mainly from northeasterners, who punished by drought, dreamed of a better life in the land of droo, through work in civil construction. At first Brazil was predominantly rural, then it is predominantly urban, with the largest population in urban areas.
But the urbanization process took place in a disorderly manner, the current laws such as law of no. 10,257/2001, called the City Statute, a new and generic law, where it brings the requirements of the National Urbanization Policy, where cities that have their population above twenty (20) thousand inhabitants is obliged by constitutional order, with fulcrum in the caput of Art. 182 and its § 1to legislate, creating organic laws in order to bring to territorial dance guidelines for the land parceling. Cities with a population of less than twenty (20) thousand inhabitants have no obligations to create a master plan, but are not prevented from creating them, although the Law did not prohibit, there being a presumption of permission.
4. REAL ESTATE IN INTERNATIONAL LAW
In several Constitutions, Civil Codes and International Laws, the definition of the concept of real estate was not found, in this way the following are some alien laws, inframentioned:
In France, after the bastille was taken, the French National Constituent Assembly began to draft the Constitution. At the same time, a committee of Members had decided to write a preamble to the ideals of the revolution. Gathered were: Thomas Jefferson American ambassador in Paris, Marquis de La Fayette, the winner of the War of Independence of the United States, the Count of Mirabeau, among others (CASTILHO, 2019).
Centuries later, at a public assembly in Paris, Pierre Joseph Proudhon asks the audience: what is property? Karl Marx who was sitting in the audience answered with other questions: “Property? But what property? Private, bourgeois property?” The answer to this question by Proudhon from which Karl Marx did not answer is the objective of this work. Economists and sociologists of socialist tendency of the twentieth century, influenced by the forerunners of the eighteenth century who defended property in general as natural social properties, as master Pierre Joseph Proudhon in his work Qu’est ce what LA PROPRIÉTÉ, that is, “What is property”, at the time of Karl Max who declared the private property (real estate) of bourgeois origin , had a capitalist character, founded on the medieval landowner who originated the bourgeois class, now capitalist.
Notice that French law has not conceptualised real estate, it is considered a subtly constitutional right. It is tutored and housed in Art. 17 of the Declaration of Human and Citizen Rights. As property is an inviolable and sacred right, no one of it can be deprived, unless the legally proven public need demands it evidently and on condition of fair and prior indemnification.
It is inviolable and the French citizen does not support the deprivation of this right. Only upon fair and prior indemnification. On January 16, 1982, the constitutional value of real estate was granted, inserted in connection with the principles expressed by the Declaration of Human and Citizen Rights, safeguarding the right of real estate property, designating it as objectives of political society positioning it at the level of freedom, solidarity and fraternity, guaranteeing it security and resistance to oppression,(GUERRA, 2011).[2]
In Italy, under Constitutional Law and Italian Civil Law, real estate is strictly the social function. From which it gains a definitive and positive meaning on the part of the holder, in an essence of a social nature and not from the economic point of view. It is a materialization of fundamental principles, exclusively: the dignity of the human person and that of social justice. The owner of the real estate property, enters into association with other citizens, rightly transporters of legally relevant events, (GUERRA, 2011).
The Constitution of the Italian Republic, in Title III, of the part of economic relations, inherent in Article 42, here, below cited, in particular translation:
The property is public or private. Economic assets belong to the State, or entities, or to individuals. The Property is recognized and guaranteed by law, which determines its forms of acquisition, possession and limits, in order to ensure its social function and to make it accessible to all. Private property may be, in cases provided for by law and except indemnification, expropriated for reasons of general interest. The law establishes the norms and rights of legitimate and testamentary succession, and the rights of the State over inheritances.
The theme of the social function of property is deeply connected with the current disuse of the inflexible separation between public and private law. It seems contradictory, which in fact is not, that the social function of the distinct Italian property by Barassi, in the forties of the twentieth century, declared that it would have to be prestigious. Real estate is a power of which the nucleus is located in the middle of its own demarcations, the dubious concept that once had more than one interpretation, becomes one, in a fusion between individual and society. To what seemed to be of contrary or paradoxical understanding, when interpreting the above-mentioned article. They intertwined, complementing each other in a junction, forming a complete axiom, in pro of the common good, in a diffuse collective principle, (BARASSI, 1943, apud GUERRA, 2011).[3]
Note that Italian law did not conceptualise real estate property only said that it could be public or private, responding to the social function, which in the absence of it may be expropriated, that is, expropriated, by indemnification.[4]
In Spain, Article 33 of the Spanish Constitution identifies the right to property of private real estate, that is, the right to own the property, by assigning status of constitutional fundamental right. In the Spanish letter the right to private real estate property brings several subjective attributes inherent to items 1, 2 and 3 on the thing, determining a group of duties and obligations determined by law, respecting the values and collective interests.
In Art. 33 of the Spanish Constitution, specific to the part of the rights and duties of the citizen, recognizes the right of private property and inheritance, as well as the social function of these rights, from which their content will be defined, in accordance with the laws governing them. The good and private law is guaranteed by law, except given by social interest of public utility in pro of the common good in a collective, by means of fair compensation corresponding to what is provided by law.
Supervised on the teleological mantle of social interest, that each category of good obeys its teleology. It is necessary to refer to the social function of real estate property, understood as a constitutional order, limiting itself externally to administrative interventions for reasons of utility and public interest, in addition to social aggressions, such as the stower. The social function of real estate property is an exercise as an integral part of a right-duty of the owner, thus revealing the functionalization of the institute when exercising constitutional determination.[5]
In Portugal, Art. 1.305 of the Civil Code Portuguese, declares that the owner of the real estate property has the enjoyment, given by satisfaction, content and absolute full will, which excludes and eliminates third parties in a private and restricted way. Who has the rights to use the use of the application in the execution of the exercise of the performance of reside, a real right to the title onerous or free, using the thing and using to meet their own needs or family… together with the process or effect of fruiting and disposing of the things that belong to them, and legal dictates and compliance with the restrictions imposed by them.
Inverosimilto point out that real estate property is unlimited at any time of humanity, life in society requires contentments from which the absolutist antisocial personality, with such characteristic, as well as in the law of Rome and in French law in regimes of governments of absolutist monarchies the real estate property has never abandoned the search for the private interests of the family, religious and the public , with a limited nature by exception. The Civil Code Portuguese, the immovable property, it is worth saying, real estate property is not the object of legal definition with regard to the concept. (GUERRA, 2011).[6]
In Germany, the German Civil Code did not define the concept of real estate. German civil law brings real estate property on a list between articles 903 to 928. Starting with the power of ownership, given by the faculty of the owner of immovable thing, exposing that the owner can always provided that the law or right of third parties does not contradict, being able to enjoy, enjoy, among others… according to its volatility, and abolish too many people from some invasion. Article 903 particularly translated: “Unless the law or the rights of third parties conflict with it, the owner of something can do with it what he wants and exclude others from any influence.”[7]
The limitation of property in Germany with regard to airspace has two characteristics where it is located, usually beach towns such as Boltenhagen, real estate properties suffer a greater limitation, specifically the properties built on the seafront, are not very high! Seeming to demonstrate issues related to temperatures when dealing with wind corridors, while cities of which are not coastal, for example Frankfurt buildings suffer a minor restriction and may be higher, as in fact they are; the builder or owner cannot build at such height or depth to the point of excluding it from third party intrusions, when it generates damage to another.
It says that real estate comprises underground to the airspace, passing through the surface, not being able to abuse the right to build to the point of causing intrusions given by height or depth (GUERRA, 2011).
Note that the Germanic Civil Code deals with: the powers of the owner given by the right to property, the deepening related civil liability, with the prevention of not harming by the principle of neminem laedere, servitude, the limitation of property, and finally, the social function of property, and do not conceptualize it.[8]
5. FINAL CONSIDERATIONS
Regarding the definition of the concept of real estate, within the scope of Real Rights, the semantic field of the word, corresponding to national and international Constitutional-Civil Law, with the maximum vênia. The Professor Emeritus of the Faculty of Law of the Federal University of Bahia, Dr. Orlando Gomes, in his work entitled of Real Rights, in chapter nine (9) conceptualizes property as: “plena in re potesta“, that is, says that it is the submission of something according to Windscheid’s understanding. In the event it does not define what real estate property is, it only deals with the property as to: contents, subjects, modalities, characteristics (rural or urban) and ends with the social function.
Professor Maria Helena Diniz follows the same understanding of Professor Miguel Reale, who, in turn, follows the understanding of Roman law. Both say that property, translates into a right, that is, of an individual, that is, of legal entity, of which they have included in the frameworks of the legal norm. Being the use, given by the custom of using, practicing and using jouissance, in a dynamic of enjoyment and utility, the act of possessing through detercorpoor incorporeal thing, with the benefit of taking advantage, having fullness and exclusivity, in line with limits and obligations imposed by the legal system, always by order, in regular provision of law or constitutional order. Being able to recover, recover, return, repossess or reacquire, claiming from those who own other property unfairly, that contravenes juridicity, through human action performed or omitted, prohibited by a legal type, absent legal or superlegal justifications, which characterize antijuridicity, that is, an unfair that contravenes justice and equity. Note that teachers highlight the owner’s college, not whatever the real estate property!
O Art. 1,225 of the Brazilian Civil Code of 2002, deals with the Real Rights of Property, in item I, and does not define the concept of real estate property. It is understood, in summary, that property law seems to be a broad concept that translates property, such as the submission of the thing to the will of its owner. Property is the acquisition of a material or immaterial good, given by a legal relationship of appropriation, which generates a power to exercise over the thing, a real right that binds our personality under the relationships, whether as a natural or legal person, being able to enjoy the use and dispose of the property. (Our Griffin).
In the international constitutions and codes, after an incessant scientific investigation, no evidence of the concept of real estate was found. In fact, what was found was an inquiry made by Pierre Joseph Proudhon, in a work entitled Qu’est ce la propriété? Where then asks what is the property, of which he replies that it is theft! Not merely knowing how to answer one’s own question (PROUDHON, 1840).
With due respect and with the responsibility of writing, not generating conflict of ideas, snatching the acronym and provincialism, from the historical context of which the authors researched were inserted, so that there are no chronological errors, I declare that:
In view of the above, regarding the lack of definition of the concept of real estate property, the outburst of legal thought is necessary to the scientific community! When answering about what real estate is. It is notorious that the concept of real estate property arises from the characteristics: implicit, explicit and intrinsic to the object. This follows the result of the commission of this Course Completion Work (TCC), (MBA) in Real Estate Law, the long-awaited concept of real estate, here, in verbis, infra, described:
Real Estate property in short is a still property, corresponding to the soil (surface), the subsoil and airspace, and in everything in which it incorporates in it in a natural or artificial way, considering for legal purposes, the real rights, over it assured, not losing its character in buildings apart from the ground, even if its unit does not have to root.
As a rule it is a good from scratch, and can be: an area of bare or constructed land, habitable, corporeal, lawful, possible, determined, public or private. Dilícia or horizontal, measured metrically, full or limited, restricted, exclusive, individual or condominium, successionable, multi, transferable, booked, hire, registered, registered, unitary, absolute, perpetual, registered, continues, legal, available, usufruct, usucapida, acquired by accession, increased, promised, compromised, pledged, mortgaged, served, consigned, granted, described, located, georeferenced, confronted and dismembered, urban or rural, environmental, economic, family, cultural, sports care, residential, religious, industrial or mercantile , collective, taxable, immune or exempt, resoluble, fiduciary, indemnified.
Conditioned to the domain of a legal or physical person, responding to its social function of property, related to the socio-environmental function, expressly guaranteed from which the owner or possessor originates the faculties of: enjoyment, use, useful domain, enjoyment and claim, with propter rem and erga omnes effects.
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APPENDIX – FOOTNOTE REFERENCES
2. Movie: The Young Karl Marx, YouTbe.com/ /watch?v=2M5vo2n6G7Y&t=1297s.p.
3. Article 17 – La propriété étant un droit inviolable et sacré, nul ne peut être privé, sauf si le besoin public légalement prouvé l’exige évidemment et sous condition d’une compensation juste et préalable.
4. Costituzione Della República Italiana. Art 42. La proprietà è pubblica o privata. I beni economici appartengono allo Stato, ad enti o a privati . La proprietà privata è riconosciuta e garantita dalla legge, che ne determina i modi acquisto, di godimento e i limiti allo scopo di assicurare la funzione sociale e di renderla accessibile a tutti. La proprietà privata può essere, nei casi preveduti dalla legge, e salvo indennizzo, espropriata per motivi di interesse generale. La legge stabilisce le norme ed i limiti della successione legittima e testamentaria e i diritto dello Stato sulle eredità.
5. Article 33.
6. Art 1.305 – The owner enjoys in full and exclusive way the rights of use, enjoyment and disposition of the things that belong to him, within the limits of the law and in compliance with the restrictions imposed by him.
7. 1. Se reconoce el derecho a la propiedad privada y a la herencia.
- La función social de estos derechos delimitará su contenido, de acuerdo con las leyes
- Nadie podrá ser privado de sus bienes y derechos sino por causa justificada de utilidad pública o interés social, mediante la correspondiente indemnización y de conformidad con lo dispuesto por las leyes.
8. § 903 Befugnisse des Eigentümers
Der Eigentümer einer sache kann, soweit nicht das Gesetz oder Rechte Dritter entgegenstehen, mit der sache nach Belieben verfahren und andere von jeder Einwirkung ausschließen.
§ 905 Begrenzung des Eigentums
Das Recht des Eigentümers eines Grundstücks erstreckt sich auf den Raum über der Oberfläche und auf den Erdkörper unter der Oberfläche.
[1] Master’s degree in Law from the Ibero-American University Foundation (MBA) in Real Estate Law from Laureate International Universities, complex (FMU). Bachelor of Law from the Regional College of Bahia, (Unirb).
Submitted: July, 2020.
Approved: December, 2020.
