Main causes of insecure Land Rights in Brazil: evidences from LGAF and case study

BASTIAAN REYDON, ANA PAULA BUENO, ANA KARINA BUENO, VITOR FERNANDES

Núcleo Economia Agrária, UNICAMP, Brazil bastiaanreydon@yahoo.com.br

MAIN PROBLEM

THE MAJOR PROBLEMS IN BRASIL OF INSECURE LAND RIGHTS ARE:

• Its weak institutional land administration setting;

• The lack of cadastre;• The role that the notaries’ plays in it.

MUNICIPALITY: decisions about use of rural and urban land, charging of urban land tax State Land

Institutes: responsible for all state public land

Resettlements of landless

LAW 10,267 – any change in property at the notaries needs georefereed plant for register

SPU – Navy land and other public land

INCOME TAX Office: charging of rural property tax (ITR)

JUDICIARY COURTS - it homologates or creates titles in decisions of any type of conflict

Properties Notaries: registers properties based on contracts of purchase and selling (consulting preview registers)

INCRA: grants unique initial registration, registers properties at a cadastre, concedes concession of use to resettled, discriminates public land;

Source: legislation and Reydon (2006)

Brazil - Legal and institucional land administration

Presidency of the Republic with Congress approval establishes: Conservation areas and Aboriginal Lands

Colonization – public land destination to land divisions

State Governors with Congress approval establishes: State conservation areas

Notes Notary: registers possessions and exchanges

The lack of cadastre

• There is no physical record;• lack of confirmation between the right of the

written document and record physical causes insecurity;

• possibility of generating multiple titles on the same area;

• The main problem is in the relation between notes notaries and ownership notaries

Notary Notes

• Produces the essential validity of the property or possession transfer deed that will be registered at the Registry of Property (art. 108, do Civil Code);

• Main problems: The deed can be registered at any Notary in the country –

no geographic limits is no control over the property – more than one deed can

be registered for the same property; A deed without registration in the Registry Notary proves

only the right of possession; Deed registering does not require mapping.

Properties Register Notaries

• records and headlines based on public documents;

• Does not require the area mapped at the deed;• keeps a register of rights to the area described

in the deed;• Is defined by the location of the property;• But some problems can occur because not all

regions have notary.

LGAF main conclusions

• Lack of land regulation and governance• Land policy not adjusted to accommodate the wide

diversity of land tenure typology • Confusing legislation; weak rule of law• Overlapping institutions • Public land grabbing• Lack of clear regulations in land markets• Land information is not consolidated• High need to know how the existing information is

LGAF – public land information Score

LGI-Dim

Topic BR PA PI SP

Completeness of Registry

16 i Mapping of registry records (urban) A D D D

16 i Mapping of registry records (rural) B D

16 ii Economically relevant private encumbrances A A A C

16 iii Economically relevant public restrictions or charges A A A C

16 iv Searchability of the registry (or organization with information on land rights) A B A A

16 v Accessibility of records in the registry (or organization with information on land rights) - Private land

A A A A

16 v Accessibility of records in the registry (or organization with information on land rights) - Public land

A A A D

16 vi Timely response to a request for access to records in the registry (or organization with information on land rights) - Private land

B C C A

16 vi Timely response to a request for access to records in the registry (or organization with information on land rights) - Public land

B C C D

CASE OF SITIO BARREIRO

• area 1093 ha - located in Santana de Parnaíba, region Barueri-SP;

• region with an incidence of upscale condominium and high real estate prices;

• the area existed within the possession, through a deed of assignment of hereditary rights, had no record in the Registry of Property;

Localization

CASE OF SITIO BARREIRO

• Occurrence of overlapping registers of an other property, Fazenda Itahyê, area located in Perus, city of Sao Paulo, 33 km distant;

• In the 80s several spinoffs Areas of the Farm Itahyê occurred;

• Were made through public purchase and selling deeds registered at 9th Notary Notes of Sao Paulo

• registered at the register Notary in Santana de Parnaíba and no longer in Sao Paulo;

CASE OS SITIO BARREIRO

• The Properties Register Notaries filed all dismemberment, transferring almost all area of Fazenda Itahyê to Santana de Parnaíba/Barueri;

• The judicial investigation established that one of the properties dismembered Farm Itahyê and described in Santana de Paraníba could not be mapped by its description that does not match with physical location;

• The State company EMPLASA changed the location of streams in the Sitio Barreiro area to give legality to the public deeds that overlapped area;

• Many diferent areas were expropriated by the state – so much was done do gain its reimbursemnt ;

CASE OF ´SITIO BARREIRO

• The errors happened 33 years ago, consolidating a situation and urbanization of the area of the Sitio Barreiro that may cause social chaos if they have to vacate the area;

• Errors undermined tenure rights of third parties;• Errors undermined tenure rights of others,

being carried out within the institutions responsible for ensuring the legal certainty with apparent legality.

OUTCOMES AND PROPOSITIONS

• Interaction between agencies to develop a single map containing all areas, public and private, in a single register;

• Effective communication between Notary Notes and Registration Notary to prevent errors or fraud;

• Restricting the use of Notary Notes anywhere in the country, for that near the Registration Notary;

• Reforma of the Land Administration System