Brazil: a new and more consensual approach to expropriating land

Safeguarding rights in land acquisition: Evidence from India and Brazil

Annual World Bank Conference on Land and Poverty – 2014Anacláudia Rossbach – Ministry of Cities/Cities Alliance

March 26 / 2014

BRAZILIAN CONTEXTBRAZILIAN CONTEXT

São Paulo: internet and government pictures

BRAZILIAN CONTEXT - legalBRAZILIAN CONTEXT - legalBrazilian cities gained significantly autonomy after the 1988 Constitution, which represents the

reemerging of democracy in the country after a period of 20 year dictatorship and centralized, top

down policies for housing, transportation, land use and metropolitan management. The Constitution

introduces housing as a social right among education, health, work, social protection and safety,

and on its urban policy chapter specifies the municipal governments as responsible for

implementing urban development policies in order to fulfill the social functions of the city and

guarantee its citizens welfare. It also empowers municipalities to expropriate formal land with

proper compensation.

This urban chapter is a result of a major mobilization in the country led by social movements

campaigning for a “urban reform”, it brings important innovations, paving the way for the debate on

the right to the city and the subsequent approval of the City Statute 13 years later. Three major

advances must be highlighted: (i) the requirement of a Master Plan for cities with more than 20,000

inhabitants, as the major instrument for urban development policies; (ii) the recognition of the social

function of the property; and (iii) the right of tenure conceived for urban dwellers, living in

unclaimed urban areas (limited to the size of 250 sm) longer than 5 years.

BRAZILIAN CONTEXT - legalBRAZILIAN CONTEXT - legal“The City Statute”- 2001

This law gives municipalities a series of urban and fiscal instrument to promote more inclusive

urban land planning, and enabling the “right to the city” to all citizens, maintaining the right to

dwelling locally for poor people.

The main instruments in the City Statute are: (i) social interest zoning, (ii) land regularization tools;

(iii) progressive property taxes for under-utilized land, (iii) selling of building rights certificates; (iv)

integrated urban operations; (v) land value capture mechanisms. Through the national urban policy

framework the City Statute required the creation of a National Council, with representatives of

government and civil society as a policy advisory board.

This law is the basis of our current approach to planning cities and dealing with the tensions

between real estate market expansion, economic growth and social inclusion in the complex

context of overcrowded cities lacking serviced land, and in metropolitan regions that lack any

coordinated management and governance tradition.

BRAZILIAN CONTEXT – investmentsBRAZILIAN CONTEXT – investmentsThe PAC was launched in 2007 with the purpose of leveraging economic growth through

infrastructure investments. The program is divided in two main phases, 4 years each: PAC

(2007 – 10) and PAC 2 (2011 – 14) and comprehends basically two tranches on investments,

with a combination of grants and subsidized long term finance for individuals, public and

private sector.

Although the first phase of PAC also included investments in urban areas, the second tranche

prioritizes metropolitan regions, where 36% of the Brazilian population lives in a context of

major historical problems such as slums, disaster and risk vulnerability, urban mobility

bottlenecks, violence and many other social gaps.

In terms of magnitude of investments, the first phase of PAC comprises a portfolio of

approximately US$ 270 billion, while PAC 2 an amount of US$ 417 billion.

BRAZILIAN CONTEXTBRAZILIAN CONTEXT Intensive infrastructure development Increasing need of land and population resettlement Conflicts in areas under impact of major infrastructure works Denunciation to public prosecution, public defender, Housing Rights UN

Rapporteur..... Absence of a specific legal framework at national level Families resettlement threated under environmental licensing scope

Sectorial regulations – transportation, energy sector, urban infrastructure...

Need to formulate guarantees and procedures for damage repair caused to families relocated due to engineering works

BRAZILIAN CONTEXTBRAZILIAN CONTEXT Housing as a social right – National Constitution and International

Treaties with Brazil as signatory

Formal owners of regular real estate property – current legal framework, civil and administrative

Preserves indemnification through expropriation

Squatters - especially in impoverished areas, or precarious settlements, with families under medium and high vulnerability

Inefficient safeguards

No pacified understanding related to recognition of tenure in the Judiciary

MINISTRY OF CITIES – PROGRAMS AND MINISTRY OF CITIES – PROGRAMS AND ACTIONSACTIONS

Promote involuntary resettlement of families: HOUSING

Slum upgrading

SANITATION Water supply systems, sewerage and urban drainage

MOBILITY Urban transportation systems

SLOPES Land slide risks – reduction and prevention

Ministry of Cities issues the Ordinance: “Portaria 317/2013” to regulate the subject

Ministry of Cities issues the Ordinance: “Portaria 317/2013” to regulate the subject

CONCEPTCONCEPT

Involuntary Resettlement

compulsory change of place of residence or exercise of economic activities, caused by the execution of works and engineering services and architecture, even when the offset is motivated by the elimination of hazard or unsanitary, or abandonment of areas unfit for human occupation, improving the quality of life and ensuring the right to housing of affected people

Involuntary Resettlement

compulsory change of place of residence or exercise of economic activities, caused by the execution of works and engineering services and architecture, even when the offset is motivated by the elimination of hazard or unsanitary, or abandonment of areas unfit for human occupation, improving the quality of life and ensuring the right to housing of affected people

Instances of participation for discussion and gathering suggestions to the text of the Ordinance:

31st Meeting of the Council of Cities: December 2012

International Workshop: 27 and 28 March/2012

Public Consultation: April 23 to 30 May/2012

32nd Meeting of the Council of Cities: June/2012

THE PROCESS TOWARDS A NEW LEGAL THE PROCESS TOWARDS A NEW LEGAL FRAMEWORKFRAMEWORK

LEGAL FRAMEWORK - OBJETIVESLEGAL FRAMEWORK - OBJETIVES

establish common line of action for managers MCidades

formulate safeguards and procedures to repair the damage done to

families that need to be displaced

restore or improve the social, life and income of affected people

PROCEDURESPROCEDURESstudy of alternative infrastructure workstest different solutions and budget in order to eliminate or reduce the number of

people affectedpreparation of Resettlement Plan and Compensation Measuresidentification of eligible public - physical and socioeconomic cadaster/databank definition of adequate solutions for each familyformalizing specific instance of participation and shared managementestablishment of mechanisms for conflict prevention and mediation social work with familiesset of actions (including socio-educational)estimates for repair/compensation costssecure funding sources

RANGE OF SITUATIONSRANGE OF SITUATIONS Affected family classified by types of ownership and use:

Owner of:

residential property, commercial or mixed use (residential / commercial)

Squatters occupying:

residential, commercial or mixed use (residential / commercial) units

more than one residential, commercial or mixed use (residential / commercial) unit

Lessee of:

residential, commercial or mixed use (residential / commercial)

APPLICABLE SOLUTIONSAPPLICABLE SOLUTIONS

Applicable solutions as type of ownership:

Expropriation of property, according to current law

Replacement of affected property

Compensation for improvements

Cash payment in the amount equal to at least three months' rent in a property to be leased under conditions similar to the original one

Socially vulnerable families

Adoption of measures for inclusion in public policies and social programs

Transitory solutions

Must meet minimum suitability requirements, health and sustainability of use

during the period of occupation

Assistance with rental voucher compatible with market prices

It is open to states and municipalities incorporate voluntarily other

alternatives and solutions, since guaranteed access to decent housing and

necessary requirements for the restoration or improvement of previous social

conditions of life and income of affected people

COMPLEMENTARY GUARANTEESCOMPLEMENTARY GUARANTEES

Sensitization of leadership at strategic level of three spheres of government: Ministers, Governors, Mayors

Build capacity at the three spheres of government in the tactical and operational levels: Secretaries, Directors, Managers, Technical staff

Establish national regulatory framework, expanding the scope of current Ordinance (Portaria) to works executed by other ministries or government spheres

CHALLENGESCHALLENGES

clusters of households self-constructed,

arranged in a disorderly fashion,

dense and lacking in essential public

services, occupying land owned by others

Self-construction of housing units at the absence or scarcity of basic urban infrastructure

SlumsSlumsIrregular low income

settlementsIrregular low income

settlements

Tenement/collective housing, consisting of

building sub-divided into rented accommodation

or assigned; super-crowded and sanitation

facilities for common use

by lack of maintenance or because their execution by the government was incomplete, requiring rehabilitation and adaptation actions

Tenement housingTenement housing Old public housing complexesOld public housing complexes

PRECARIOUS SETTLEMENTSPRECARIOUS SETTLEMENTS

COMPLEXOCOMPLEXO DODO ALEMÃOALEMÃO – – RIORIO DEDE JANEIRO/RJJANEIRO/RJ

Houses

Mobility: opening pathways and cable car

Equipment:

Emergency Unit - UPA

Reference Center for Youth

Income Generation Centre

Legal Support Centre

High School,

Library

01 Nursery, 01 Mall

01 Family Health Care Unit

02 Multisport Courts

Sewer, water, paving and drainage

LEFT MARGINS OFLEFT MARGINS OF ANIL RIVERANIL RIVER – – SÃOSÃO LUÍS/MALUÍS/MA

Urban mobility and environmental recovery

Before After

Before After

VILAVILA DADA BARCABARCA – – BELÉM/PABELÉM/PA

MACIÇO MORRO DA CRUZ – FLORIANÓPOLIS/SCMACIÇO MORRO DA CRUZ – FLORIANÓPOLIS/SC

Contenção de encostas

Sewer, water, paving and drainage

HELIÓPOLISHELIÓPOLIS – – SÃOSÃO PAULO/SPPAULO/SP

Macro drainage

Sewer, water, paving and drainage

Infrastructure

PARAISÓPOLISPARAISÓPOLIS – – SÃOSÃO PAULO/SPPAULO/SP

Sewer, water, paving and drainage

Technical school, sports court, child care and health center

Thank you!

Anacláudia Rossbachanaclaudia.rede@gmail.com