Understanding Property Rights: Definition and Elements

NOTE LESSON 05: PROPERTY

1. Concept

Property (derived from proprius, which belongs to one person) is the right that an individual or company has to use, enjoy, dispose of, or recover something from whoever owns or holds it (Article 1228, caput, Civil Code). This represents the most complete set of legal rights and the central right concerning things.

2. The Social Function of Property

The current Civil Code, Article 1228, § 1, reaffirms the social function of property as established in Article 5, XXIII of the Constitution and the City Statute (Law 10257/01).

2.1. Socio-Environmental Function

In fact, the Civil Code goes further, extending the social function of property to its socio-environmental function, providing for the protection of flora, fauna, ecological diversity, and cultural and artistic heritage, all in accordance with Article 225 of the 1988 Constitution and the National Environment Law (Law No. 6.938/81).

3. Elements of Property

3.1. Right to Enjoy

To enjoy or jus fruendi consists of the removal of fruits (natural, industrial, or civil) and using the products of something (e.g., lease).

3.2. Right of Claim

Right of Claim or Reaver (rei vindicatio) includes the power to bring suit for the good against those who unfairly hold or control it (revindicatory action or negatory action against someone else's property).

3.3. Right of Use

Right of Use, or Use (jus utendi) is the power that the owner has to make use of something and use it as they deem fit, without changing its substance, not causing harm to others (e.g., living in a house). Property Law is no longer regarded as absolute, finding restrictions to the right of use in the Constitution, the Civil Code itself, and the City Statute.

3.4. Right to Dispose

Right to alienate or (jus abutendi or disponendi) is the power to dispose of something for consideration (sale) or free of charge (donation), including the power to consume it or use it as collateral (pledge, mortgage, servitude).

4. Characteristics of Property

4.1. Relativized Absolute Nature

The right of property is the most comprehensive of real rights; the holder can use it as they wish, subject to legal constraints (public) or the existence of property rights of other holders (Article 1231 CC). It is absolute in nature compared to personal rights. However, it is relativized with regard to personality rights, diffuse and collective rights, and the interests of the community.

4.2. Exclusivity

The same thing cannot belong exclusively (i.e., except for fees) and simultaneously to two or more people.

4.3. Perpetuity

It remains independent of exercise, as long as there is no cause for its elimination (legal or voluntary).

4.4. Elasticity

Property can be stretched or contracted in its exercise, as detachable powers are added or subtracted.

5. Object of Property

We can say that all things can be the object of property, except those excluded by law. So, all things movable and immovable, tangible and intangible assets, etc., if they have economic value and are individually determined, usable by man, can be subject to all powers within legal limits.

6. Classification of Property

6.1. Freehold

Freehold (or full ownership): when the owner has the right to use, enjoyment, and disposition fully concentrated in their hands, without a third party having any rights to that asset. All elements are assembled in the hands of its owner.

6.2. Limited Property

Limited (or restricted) property: when the property has any liens on it (examples: mortgage, servitude, and usufruct), or when it is resolvable (to be extinguished with a future event). One or some of the powers of the property belong to others, thus becoming a real right over things of others.

7. Parts of Property

7.1. Legal Ownership

This is the title, the fact of ownership, and having the right in one's name. It is said that legal ownership is stripped of the attributes of use and enjoyment, and the right to the essence, the substance of the thing. The person receives the name of legal owner, landlord, or direct owner.

7.2. Useful Domain

Corresponds to the right to use, enjoy, and dispose of something. Depending on the law, it has different names: leaseholder, tenant.

8. Titleholder vs. Holder of Interests

A person can be the proprietor, owner, and have something registered in their name, and someone else may have rights to use, enjoy, and even possess that good because of a contract (e.g., usufruct, servitude, housing). This third party may have legal title as security, as well as in a mortgage, pledge, and antichresis. Thus, if the domain is naked and owned by the same person, we have full ownership. Otherwise, it is limited.