Discussion paper for Workshop on 'Globalisation, Climate Change and Urban
Governance: Balancing the Scales for Both Efficient and Pro-Poor Urban Futures – The Case
of Brazil and the UK'.
Oxford 9-11 March 2011
Draft Copy – Do not quote
Legal institutional framework to promote increased access to land in
Brazil
Rosana Denaldi (UFABC)
1. Informality: Dimension of the problem and characteristics
In Brazil, we have approximately 81% of the population living in urban areas
and approximately 3 million housing units located in favelas, whereas 89% of
these precarious dwellings are located in metropolitan areas. (Ministry of the
Cities / Center for Studies on Metropolises / CEBRAP, 2007).
The growth of Brazilian cities has been accompanied by the growth of
precarious dwellings, slums, favelas and peripheral housing schemes.
Estimates show 40% to 50% of the population in large Brazilian cities living in
informality, with 20% in favelas (Maricato, 2001). In Brazil, the “illegal city” also
grows faster than the legal city. In the 1991-2000 period, the annual growth rate
of housing units in favelas was 4.18%, four times the annual growth rate of
housing provision, which was 1.01%.
The growth of favela population is associated with the creation of new favelas,
the physical extension of existing ones, and most of all the densification of
favelas and housing units. Studies on metropolitan regions confirm that the
growth of favelas as of the 1980’s cannot be associated only to migration
processes that are now sharply decreasing (Diniz, 1995). Most people arrive at
the favelas by “downward filtration” (Veras & Taschner, 1990, p.67). The real
1
price increase and the scarcity of land, the impoverishment of the population
leading to greater downward social mobility and to intrametropolitan mobility, as
well as the lack of access to the formal real estate market, which becomes more
and more elitist, are factors associated with increasing favelization in the past
few decades. 1
After one century of favelas, many changes are perceived. Favelas become
denser, verticalized, and most housing units are built of brick and mortar; the
image of a shack is replaced with that of brickwork. Coverage of infrastructure
services increases, though precariousness is maintained. Access to favelas is
primarily by means of an informal real estate market, and the “buyer” oftentimes
acquires a partially built dwelling. Spatial and social diversity is also observed:
not only the poorer get to dwell in favelas.
Some studies indicate that favelas are spatially and socially heterogeneous and
are not the only poor sector in a city. Taschner (2001: 99) states that favelas
present a diverse social structure, endowed with mobility and insertion, and that
“non-miserable categories” can also be found there. The favela space is not a
homogeneous space either. Outstandingly, there are differentiated spaces
occupied by people with different income levels, and the quality of buildings
corresponds to different income levels and housing prices (Taschner, 2001:
142).
Other studies reveal a real estate market in favelas, including intermediaries
and agencies.2 Abramo (2001) points at an exhausting squatting dynamics as
the main form of access to dwelling in favelas and states that, in the past few
1
Silva (2000) indicates that, between 1964 and 1986, land prices increased by 290%, whereas
minimum wages were reduced to 54.5% of their value. Veras & Taschner (1990) record that, in
the 1970’s, the real increase in the price of a m 2 of land was 160%, whereas the 1987 minimum
wage represented 60% of the 1977 minimum wage. Analyzing the time of dwelling and place of
origin of Belo Horizonte favela population, Guimarães (2001) presents the following data: 47.2%
of the population living for less than two years and 53.1% of the population living from two to
five years in favelas come from districts within the very city of Belo Horizonte. Lago (2000)
detects that, in the city of Rio de Janeiro, flows of population coming from the very metropolis
have increased.
2
On the informal market within favelas, see Baltrusis (2000), Taschner (2001), Valladares
(2000), Veras & Taschner (1990).
2
decades, access to a favela is primarily provided by means of an informal real
estate market.
The author reveals that real estate prices in favelas “(…) at first sight, are
excessively high if compared with the estate qualifications per se, and/or if
compared with property prices in the vicinities”. Abramo (2001) relates this high
level pricing phenomenon particularly with the market’s self-reference
component3 and with the “freedom” concerning the right to build in a favela,
which is not subordinated to urban control laws enforced in the legal city.
Comparing that with housing schemes for the favela populations, he concludes
that the “rigid territoriality of a housing scheme” does not allow dwellings to be
extended nor to be used as a way to complement income. This freedom to build
would compensate for the inexistence of legal ownership deeds. Lastly, the
author warns that the existing pricing dynamics presents great cognitive
sophistication and that further research efforts will be necessary to understand
it.
2. Informality and the peripheral society
The dimension of this precariousness (lawlessness) is not only the result of
population growth or migration movements. It is related with an excluding
development model, with the historical characteristics of capitalism that
developed in peripheral countries. It is related with restricted access to
adequate well-located land in the cities and also with actions by the State,
which has historically favored certain economic sectors. The State / urban
space relation has been, and still is, commanded by market interests and the
underlying logic is that of subordination to business.
Maricato (2001) indicates that favelization of the cities is related to the formal
real estate market’s excluding characteristics and to metropolises’ “unequal
urbanization”, related, in its turn, to historical characteristics of the way
capitalism developed in peripheral countries, identified as “unequal and
articulated development”.
The author recalls that the legal urban land
apparatus that provided the basis for this “unequal and articulated development”
pattern and an excluding real estate market was developed in the latter half of
the 19th Century. In the latter half of the 20th Century, “low wage
industrialization” consolidates a system of access to a structurally unequal city.
To Abramo (2001), the self-referenced component would be related with “overinvestment in
construction materials” in real estate, which becomes a pricing reference in favelas, regardless
of an “objective market value”, and also with the great information asymmetry of that market.
3
3
Authors like Chico de Oliveira put an emphasis to this issue and, despite of an
intense process of industrialization since the 1950s, the Brazilian mode of
production was unable to internalize the reproduction cost of labor.
In Brazil, urban policies (urban plans and legislation) were instruments to build
inequalities. The plans neglected the “real city” and ignored conditions and
needs of the majority of the urban population. Urban instruments (laws, plans,
and zoning) served the interests of the ruling class and the real estate market.
More recently, with globalization, urban policy has been appreciating strategic
projects geared to attract real estate and productive capital that intensify
predatory disputing between cities and channel incentives and subsidies from
the State. The outcome of this urban policy is a scenario of increased sociospatial disparity. It also underlines that land continues to be a knot in Brazilian
society.
Ferreira argues that the new interdependencies among real estate and financial
markets in the main metropolitan regions have reinforced the gentrification and
socio-spatial exclusion trend in Brazilian cities.
Maricato (2010, p.08) discusses the specificities of peripheral cities and
emphasizes that state regulation on urban space and the reach of private
residential market differentiate cities in peripheral countries from cities in central
countries. “In the latter, the State indeed enforces regulation on all urban land
as it abides by the existing laws, with insignificant exceptions. In the former,
remarkably, most of the population can reside in informal spaces which are also
segregated in relation to the official or legal city and where urban plans and
laws are not enforced.” She states that, in central countries, the private market
meets the housing needs of the majority of the population, whereas in
peripheral countries the formal or legal market is limited and serves the minority
of the population. She concludes that, “vacant land retention in the cities is a
structural part of this model that combines: restricted markets, speculative
profits, the absence of public policies on a significant scale, housing scarcity,
segregation, and informality.”
4
3. Evolution of governmental action and recent housing policy
A brief retrospective view of housing policies in the country shows a
remarkable absence of the State in the sector. Housing policy in the country has
often been translated into a type of non-policy, that is, an option not to act on
solving the housing problem, which has become even more severe over the
course of the urban boom Brazil has experienced since the latter half of the 20 th
Century.
In general, up until the mid 1960’s, Brazilian State intervention in the housing
sector was focused mostly on legal and sanitary measures.
The State’s
housing production was rather limited and sanitary or esthetic design
interventions expelled the lower income population from the central areas. It
promoted more segregation and social exclusion (Bonduki, 2001).
In the early 1960’s, the country experienced important transformations in the
way the State started to conduct the provision of public housing by creating the
Financial Housing System (SFH) and the National Housing Bank (BNH). The
BNH funded housing construction, but also basic sanitation and urban
infrastructure, which included transport and energy projects. The Bank’s
strategy stimulated the civil construction sector, which could then rely on a
source of stable funding for the production of finished units, but, as a
counterpart, it contributed fairly little to the supply of housing for the lower
income sectors of the population—analyses of the State production in that
period unveil that BNH’s expressive and unprecedented supply of housing was
mostly geared to the middle income segments (Bonduki, 2002).
Despite all the potential criticism to BNH’s production, the Bank’s extinction in
1984 meant a period of State absence in the field of housing policies, including
urban policies as well (BRASIL, 2004).
The State witnessed the growth of favelas and did not intervene with
comprehensive housing and urban policies that would serve the population
living in precarious settlements. Eradicating the favelas was a most broadly
5
championed alternative until the 1960’s. As of the 1970’s, when the State
intervened, admitting upgrading of the favelas, it did so by means of small scale
“alternative programs” that were disconnected from the backbone of the
housing policy and the institutional structures. During the days of the BNH,
favelas were dealt with in terms of a deficit of new housing units, but what really
happened was that the population living in the favelas could not afford a house
from the system. In the post-BNH period, the federal government changed its
discourse, but still didn’t give priority to the favelas. Various programs were
implemented and adapted in order to serve the population in favelas, but the
volume of resources allocated was insignificant.
In the 1980’s, we witness the beginning of the institutional construction of
municipal policies for the upgrading of favelas. In the 1990’s, slum upgrading is
no longer promoted by means of “alternative municipal programs” and starts to
be the object of a housing policy itself (Denaldi, 2003). A municipal
mainstreaming is observed. Many municipalities containing favelas start to
develop slum upgrading and regularization programs as part of a broader
municipal urban and housing policy.
The institutionalization of slum upgrading policies in the realm of the federal
government starts in the 1990’s, when various programs are put in place and
implemented to promote it. Remarkably, there are the “Pro-Moradia” and the
“Habitar Brasil” programs, which were launched in 1996 and 1997. However, it
is only from 2003 onwards, particularly after 2007 with the launching of the PAC
(Accelerating Growth Program), that increased housing and, especially, favela
upgrading investments are observed.
In 2007, in President Luiz Inácio Lula da Silva’s second mandate, the PAC was
launched to promote an economic growth figure of 5% per year in the 20072010 period. The program was divided onto three infrastructure pillars: logistics,
energy, and social and urban. Program components include slum upgrading
and precarious settlements, anticipating significant increase in investments and
enhancement in service. By 2010, the PAC enabled investments reaching 503.9
billion, of which 170.8 billion were geared to social and urban infrastructure.
6
Some 40 billion were estimated to be invested in sanitation and 106.3 billion in
housing.
Prior to taking up these housing investments, the sector experienced an
institutional strengthening. In the institutional field, in 2003, the Ministry of the
Cities was created, national as well as regional and local bodies of social
participation and control were implemented, and a National Housing Policy
(PNH) and a National Housing Plan (Planhab) were developed and approved.
The Ministry of the Cities brought housing, sanitation, public transportation, and
land restructuring together; laid out new programmatic guidelines for the
national urban development policy; and strived to develop new regulatory
frameworks for their sector policies.
The housing and urban development policy developed by President Luiz Inácio
Lula da Silva’s administration has defined actions in three dimensions: social
control and management; financial design; access to land and regularization of
tenure. The National Housing Policy (PNH) anticipated the organization of a
National Housing System (SNH) as an instrument to organize players in the
housing area and as a way to gather the efforts of the three—national, state,
and municipal—government levels. The SNH is subdivided in two sub-systems
which, complementarily, establish mechanisms for the provision of housing to
all social segments. These are: the National Social Interest Housing System
(SNHIS) and the National Market Housing System (SNHM), the former geared
to serve the low income population, and the latter geared to serve the higher
income bracket of families that can be served by the market.
As mentioned before, the federal government initiatives to take up again
planning in the housing sector and the institutional strengthening of the housing
and urban development sector, were accompanied by significantly increased
housing investments, with increased subsidies to serve the lower income
population, and an up-scaled system of guarantees to encourage the private
market to operate more actively around the middle income sectors.
Increased housing investments in the country as of 2003 were the result of a
new regulatory framework (through the implementation of laws and measures to
increase the private housing market and to recover public funds). This
movement yielded record leaps in the main sources of the housing policy, that
is, the FGTS and the SBPE (the Unemployment Fund and the Brazilian Savings
7
and Loans Service), which, between 2003 and 2009, had their resource base
increased by, respectively, 583% and 1309% (DENALDI et al, 2010).
In relation to the agenda of increasing the housing supply to lower income
brackets, in 2003-2009, 81.32% of the housing services, that is, 2.83 million out
of a total 3.48 million, were focused on the population earning up to 5 minimum
wages (Denaldi et al, 2010)—an income bracket where housing demand is the
highest in the country: 90% of the Brazilian housing deficit is concentrated in the
range of families that earn up to 3 minimum wages, and 96% are in the bracket
of people earning up to 5 minimum wages (INGE/FJP, 2008).
4. New institutional legal framework (Statute of the City)
A major advance was the 2001 approval of the Statute of the City. Law N.
10.257/2001, the Statute of the City is a federal law defining instruments to
enforce the social role of urban land ownership. The Statute has a very
ambitious objective: it establishes a legal-institutional framework to consolidate
and regulate the illegal city, but also to change the logic of its formation, that is,
it defines instruments to intervene in the land market, to increase supply and
restrain valuation.
Approval of the Statute of the City represents the possibility of enhanced access
to serviced land, leading to the effective implementation of the social function of
property. According to the Statute, the Municipal Master Plan is what defines
how a property will comply with its social function. The Master Plan must
establish mechanisms to curb retention of vacant urban land and influence land
pricing, besides increasing the supply of serviced land and the reservation of
areas for social housing.
Remarkably enough, this legislation establishes that population living in
precarious settlements are entitled to land titling. To promote titling, it includes
provisions to start the AEIS (Special Areas of Social Interest) or ZEIS (Special
Zones of Social Interest) as well as to grant special use for housing purposes.
The objective of marking a favela area as a ZEIS is to recognize the right to
8
titling and to apply special parameters for upgrading and regularization. Vacant
areas may also be zoned as ZEIS. The objective of marking a vacant area as
ZEIS is to set it aside exclusively for social housing.
Other instruments may provide incentives to increase the supply of serviced
land and to democratize its access. Examples include the “Compulsory
Parceling and Building”, and progressive property taxes (IPTU, levied on urban
land) and the expropriation with payment effected by government bonds.
Development exactions may contribute to a occupation that is more uniform and
compatible with the available infrastructure capacity. Joint land redevelopment
operations and transferable development rights may become mechanisms to
increase the supply of social housing by means of public private partnerships.
Enforcing the principles and instruments contained in the Statute depends on
incorporating them in the Master Plans and may gain varied contours according
to municipal policies and the correlation of political forces at city level.4 It may
become an important strategy to articulate an urban and housing policy and to
change the direction of the urban policy which, as it has been historically
enforced, eventually accepted inequalities. However, Ferreira (2008) recalls that
delegating the implementation of those instruments to the municipal
management has positive as well as negative consequences. “Positive because
it delegates the negotiation of conflicts between private rights and the public
interest to the local sphere, allowing for the necessary differentiations between
completely diverse municipal realities in the country and ensuring that the
discussion of the urban issue at the municipal level comes closer to the citizens,
making it efficiently participatory. The negative aspect is that, as it delegates
regulation of the instruments to a later negotiation within the realm of local
Master Plans, a new dispute is established and, as was said before, an
essentially political one, at the municipal level, and, according to the direction it
takes, these instruments might not be implemented as expected.
4
According to monitoring by the Ministry of the Cities Urban Program Secretariat, and updated
information in their data base, on February 17, 2010, 93% (1,335) of the mandated
municipalities started to develop a Master Plan, 63 % (908) of which were sent to the Legislative
Branch and 36% (562) were approved. This information is based on research conducted by the
Ministry of the Cities/CONFEA, for a total 1,552 municipalities consulted (amongst the ones with
a mandate to develop master plans).
9
5. Right to housing and Land Titling
In Brazil, the issue of land titling in favelas, either upgraded or in the process of
being upgraded, has entered into the agenda of the federal government and
many state and municipal governments.5 At the municipal level, since the early
1980’s, some municipalities have been creating social interest legislations,
attempting to create the conditions for titling these settlements that are outside
the standards of the federal legislation on land parceling and subdivision (Law
6.766/79 changed by Law 9.785/99). New urbanistic instruments were thus
created, such as the ZEIS (zones of special social interest) or AEIS (areas of
special social interest), which have become more widely disseminated. The
Belo Horizonte (MG) experience with the 1984 creation of the PROFAVELA
Project and, particularly, the Recife (PE) experience, with the 1983 creation of
the ZEIS and the PREZEIS (Land Titling Plan for the Zones of Special Social
Interest), became references for the other Brazilian cities.
In the federal realm, the Ministry of the City started, in 2003, the Programa
Papel Passado (Legal Papers Program), looking at direct or indirect support to
the implementation of land titling programs and actions around precarious
settlements occupied by low income populations. In 2004, by means of the
“Action Supporting Sustainable Land Titling of Informal Settlements in Urban
Areas”, direct (technical and financial) support actions were started. That action
directly benefitted approximately 1 million families as their settlement titling
processes were started.
Of a total 79,437 deeds granted, 33,314 were
registered in public notaries. Since 2003, with direct or indirect support, urban
land titling actions benefitted 1,716,836 families who live in 2,576 settlements
5
Land titling is understood as the process leading to the acquisition of useful title or land
possession, by means of divestiture or concession, remunerated or free, or even by means of
collective adverse possession, by the occupants that use it as housing for themselves and their
families, as well as urbanization of the area and legalization of the land parceling, with municipal
approval and consequent notary registration, starting individualized records, in single family or
condominium units.
10
located in 387 Brazilian municipalities. Of these families, 330,664 have already
had deeds granted, 107,575 of which have been registered in public notaries 6.
Other advances are related with the creation of regulatory frameworks.
Other non-budgetary actions were executed by the Federal Government, such
efforts to develop, review and approve federal legislation in order to simplify and
remove obstacles related with the enforcement of the federal legislation. The
following laws are included: Law N. 11,481 from 2007, Law N. 11,483/07, Law
N. 11,977/ 2009, and Law N. 11,952/ 2009.
Law N. 11,481, from 2007, addresses land titling of real estate belonging to the
Federal Government and strengthens the low income population’s right to
possession, removes the main legal bottlenecks, and creates the instruments to
divest and transfer vacant properties to housing projects of social interest. Law
N. 11,483/07 includes provisions on the extinction of the Rede Ferroviária
Federal S.A (Federal Railroad) and establishes the possibility of alienating nonoperational properties to the beneficiaries of land titling programs and to the
provision of social interest housing. Law N. 11,977/ 2009 (My House My Life
Program) establishes a set of instruments and procedures to simplify and
accelerate land titling and urban and environmental licensing processes for
housing developments geared to the low income population. Law N. 11,952/
2009 authorizes the donation of INCRA lands (National Institute of Colonization
and Agrarian Reform), not being used for agricultural purposes, in urban areas
of municipalities located within the program Legal Amazon.
As of 2009, actions focused on promoting urban land titling in the Legal Amazon
program were taken for the first time. The Ministry of the Cities and the Ministry
of Agricultural Development (MDA) put priority on the regulation of Law N.
11,952/2009 and the support to municipalities in organizing processes of
requesting consolidated urban areas or urban expansion to the MDA.
6
According to the Legal Papers Monitoring System by the Ministry of the Cities (SNPU and
SNH).
11
In this area, the main advance has certainly been the inclusion of land titling in
the agenda of urban policies in the country and the contribution to reviewing
and collaborating regulatory frameworks that will enable land titling.
Notwithstanding, the results from land titling processes have been observed to
be modest, even with the flexibility in federal legislation and the adoption of
instruments such as the AEIS.7 It is thus given that the new legislation has
advanced with respect to recognizing occupation in existing settlements,
defining specific indices for upgrading programs, and, in some cases,
constituting
an
important
instrument
for
community
mobilization
and
participation, which, notwithstanding this progress, has not been enough to
promote definitive regularization of the settlements. This issue is, indeed,
extremely complex and is directly related with the vulnerability of governmental
institutions, the rigidity of the legislation and its conservative enforcement, the
degree of illegality and the precariousness of the settlements, and, finally, the
history of construction in our cities.
6. Final Observations
- Upgrading and titling policies for favelas have been institutionalized, and the
new institutional legal framework related with the Statute of the City, an
institution of the National Housing Policy and a creation of the Ministry of the
Cities, all provide the basis to promote increasing access to serviced land.
-
The Statute defines slum upgrading and titling in terms of a right based
approach to the city, and, as such, is a concrete step towards social function of
the city;
- The federal government has brought the issue of titling to the national agenda
and many state and municipal governments developed titling programs.
Nevertheless, results in terms of concluding favela titling processes in Brazil are
still insignificant. There are substantial mismatches between the upgrading and
titling programs.
- In spite of that, it should be observed that there are indications that
“irregularity" and “informality” do not automatically interfere in the
7
See Denaldi & Dias (2003), Santos (2008)
12
dynamics and logics that surround the formation of prices in real estate
markets in favelas (Abramo, 2001; Baltrusis, 2003).
- On the other hand, government actions need to go beyond slum upgrading in
order to avoid the future growth of slums and irregular settlements. To that end,
increased access to serviced land is necessary.
- The Statute of the City also provides the bases that urban land complies with
its social role and the right to decent housing. The instruments provided must
be incorporated by the municipalities in their Master Plans. However, there are
strong indicators that there has been little progress in the last decade. Many
municipal plans have not been concluded or approved, most plans have not
made the instruments enforceable, and many are still not being put into
practice. The land continues to be a “knot” in Brazilian society. The correlation
of conservative political forces at city level remains a bottleneck to the effective
implementation of the statute.
- Land in metropolitan regions is ever scarcer and more expensive. In this
context, the possibility to interfere in real estate prices or to curb excessive
appreciation of land is still uncertain, as is the possibility to set aside land for the
lower income segments by means of enforcing the Statute of the City.
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