Understanding Property Loss and Expropriation Laws

Lesson 09: Understanding Property Loss

Property loss occurs through various legal mechanisms as defined by Article 1275 of the Civil Code:

• Alienation: The transfer of shareholder rights to another party (e.g., sale, donation, payment in kind, exchange). This requires registration in the Real Estate Registry.
• Waiver: A unilateral act where the owner explicitly declares the intention to relinquish rights over an asset (e.g., waiver of inheritance). This requires registration in the Real Estate Registry.
• Abandonment: Occurs when an owner leaves an item with the intention of relinquishing ownership. Once abandoned, any individual may occupy the item and acquire property rights through prescription.
• Extinction: The physical loss of the object itself (e.g., land lost to flooding or earthquakes).
• Orders: The cultivation of illegal psychotropic plants results in property confiscation. Per Article 243 of the Constitution, no compensation is applicable to the owner.
• Expropriation: A unilateral government procedure where property is seized based on public necessity, utility, or social interest, provided there is prior and fair cash compensation. The Union may expropriate rural property that fails to perform its social function.

Expropriation and the City Statute

Law 10.257/01 (City Statute) stipulates that after five years of progressive property tax increases, if the owner fails to fulfill requirements for division, building, or use, the municipality may proceed with expropriation. Compensation is paid in government securities, redeemable within 10 years in equal, successive annual installments, ensuring real value and 6% annual interest.

Key Notes on Expropriation

• Note 1: Property owned by states, municipalities, the Federal District, and territories is susceptible to expropriation by the Union. Municipal property may be expropriated by the state.
• Note 2: Temporary immixture or transfer of possession may occur upon judicial grant. The State must declare an emergency and deposit the established quantum in court for the owner.
• Note 3: The government must use the property for the declared purpose. If the destination is deviated from, retrocession applies, allowing the former owner to claim damages. Once incorporated into the government, the property cannot be reclaimed; any legal action resolves into damages.

Additional Modes of Loss

• Prescription: Analyzed separately.
• Accession: Specifically the mode of avulsion, as previously studied.