Surface Rights in Brazil: Ownership and Usage

Posted on Nov 18, 2024 in Law & Jurisprudence

Note Lecture 14: Surface

1. Legal Basis

Arts. 1368-1375 Civil Code and City Statute (Law 10.257/01) – Arts. 21-24.

2. Objective

Flexibility of land use and encouragement of building without property purchase, facilitating compliance with the social function duty by the property owner, relieving the owner from charges and taxes, which transfer to the landowner.

3. Concept

The real right to have a building or planting on foreign soil. (Orlando Gomes)

4. Content

Occurs in a double field, separating land ownership from building ownership.

5. Parties

5.1. Proprietário

Grantor, owner of the soil property.

5.2. Superficiário

Dealer, holder of the building property.

6. Characteristics

The right of surface suppresses or suspends the rule of accession, under which the landowner would acquire ownership of buildings and improvements erected by a third party. With surface rights, two properties coexist: the dominus solli (landowner) and the holder of surface rights (res surface), which is the work done on the ground.

7. Surface Rights vs. Rental

Prima facie, surface rights resemble rental, but differ in the following characteristics:

  • 7.1. May or may not involve charges.
  • 7.2. Can be transferred to others, obeying contract terms.
  • 7.3. Transmits to the heirs of the surface rights.
  • 7.4. Generates preemptive rights for the landowner and the holder in case of land sale, surface rights sale, or ownership consolidation.

8. Duration

Fixed, indefinite, temporary, or perpetual (Art. 21 of the City Statute).

8.1. Upon termination of surface rights, the landlord does not indemnify accessions and improvements, unless stipulated otherwise by contract.

9. Types

  • 9.1. Costly Granting: Involves periodic payments (solarium).
  • 9.2. Free Granting: Art. 21, § 2 of the City Statute.

10. Formalization

Constituted by public deed (Art. 21, heading), registered at the Property Office (Art. 21, caput and Art. 56, inc. 39 of the City Statute). Extinction is formalized under Art. 24, § 2 and Art. 57, inc. 20 of the City Statute.

11. Landowner Rights

  • 11.1. Utilize the property part not subject to surface rights, following contract restrictions.
  • 11.2. Receive periodically adjusted payments for costly grants.
  • 11.3. Exercise preference in acquiring surface rights if they are alienated.
  • 11.4. Promote surface resolution before the term if accessions are not made within the period or are contrary to the contract.
  • 11.5. Constitute lien or charge on land.
  • 11.6. Reclaim the building or indemnify the surface rights holder upon surface extinction.

12. Landowner Duties

  • 12.1. Refrain from acts impeding construction or surface exercise.
  • 12.2. Grant preference to the surface rights holder for land acquisition on equal terms with third parties if the grant is costly.

13. Surface Rights Holder Rights

  • 13.1. Utilize the soil surface within lease limits.
  • 13.2. Use, enjoy, and dispose of accessions separately from land ownership.
  • 13.3. Constitute charges on accessions, expiring at the surface’s end.
  • 13.4. Exercise priority to acquire land when the owner alienates it.
  • 13.5. Reconstruct accessions if they perish, as long as the surface exists.

14. Surface Rights Holder Duties

  • 14.1. Pay agreed remuneration if the surface is granted onerously.
  • 14.2. Construct according to the surface constitution.
  • 14.3. Pay taxes and charges related to the surface work and soil proportionally.
  • 14.4. Conserve the surface work and not demolish it.
  • 14.5. Grant preference to the landowner for acquiring superficial things on equal terms with others.

15. Transfer

By sale to third parties (Art. 21 § 4 of the City Statute) or by hereditary succession (Art. 21 § 5 of the City Statute).

16. Extinction

  • 16.1. Breach of contractual obligations, e.g., non-payment of solarium (Art. 23, II of the City Statute).
  • 16.2. Using the land for a different purpose than granted (Art. 24, § 2 of the City Statute).
  • 16.3. Confusion (merger of rights in one person), expropriation, or acquisition of both claims by a third party.
  • 16.4. Resignation of surface rights.
  • 16.5. Decay or failure to use the right to build on schedule.
  • 16.6. Dissolution.
  • 16.7. Dieback of the object (ground) or destruction of the soil.

17. Effects of Extinction

The construction or building vests in the landowner without compensation, unless the contract provides for it (Art. 24, caput of the City Statute).