O direito à moradia e a função social da propriedade – os desafios da política urbana

Abstract

The contrast of the housing shortfall and the high level of private real estate unoccupied in the urban areas of the country is at the core of the problem of irregular occupations portrayed here. In this context, we analyze the fundamentality of the social right to housing as provided in the article 6 of Federal Constitution, as well as the need to give it immediate effect. In the other hand, property rights (article 5, XXII, CF) provides the holder the faculties of use, enjoyment and disposition of the property, beyond the duty of the community to refrain from undue interference in the property. We make an assessment of the practical implications of the social function of the property, which will impose an obligation on the holder to practice domain powers for the well-being. The tension between the fundamental rights of property and housing is observed in irregular occupation for housing purposes on individuals properties. We verify in these situations how the Judiciary acts, proposing the exame of the case turned to a proportionality judgment of the conflicting rights, using as fundamental pattern the social function principle, so that decisions are aimed at maximum protection of human dignity. In terms of ordinary legislation, public policies to realize the right to housing stands out, as the “adverse possession of urban property and collective” and “urban land regularization” provided for in Federal Law nº 11.977/09, among others. The right to housing and social function of property are presented as the great challenges of urban policy, and their effectiveness is essential for building a free, fair and solidary society.