Imóveis urbanos abandonados: a responsabilidade do prefeito pela não arrecadação

Abstract

This dissertation investigates an urban paradox: abandoned properties that, while symbolizing the structural collapse of Brazilian cities, conceal immense transformative potential — capable of reshaping the urban landscape, ensuring the realization of fundamental rights, and restoring the social function of property. Despite this transformative potential, such properties — whose ownership is lost by private individuals and acquired by the Public Authority — remain largely neglected. This is because over 5,500 Brazilian municipalities either do not know or fail to apply the legal mechanism of asset collection (arrecadação) to formally declare state ownership and enable the registration of these properties. From this observation, the following research question arises: can the mayor be held liable for omission or for deliberately failing to take the necessary measures to collect abandoned urban properties? The central hypothesis is that the answer is affirmative, with the Municipal Chief Executive potentially accountable in criminal, civil, and political-administrative spheres, making the verification of such liability the core objective of this study. The justification for this analysis is grounded in the alarming scenario revealed by recent demographic censuses: millions of abandoned urban properties starkly contrast with Brazil’s persistent housing deficit, exposing not only failures in urban governance but also inefficiencies in interpreting and applying the legal institute examined herein. The loss of ownership through abandonment is analyzed based on two well-defined assumptions: evidence of abandonment reflecting the non-exercise of ownership powers (such as the absence of conservation actions) and the intention to relinquish the property, which may even be presumed absolutely due to the non-payment of fiscal charges related to the asset. The analysis explores the public interest underlying the asset collection act, its degree of mandatory application, and the limits to which it can be demanded. The research adopts a juridical-dogmatic and socio-legal methodology, employing hypothetical-deductive reasoning with both theoretical and practical focus, combining hermeneutic interpretations of grammatical, systemic, historical, and teleological order, always oriented toward the maximum effectiveness of constitutional norms and the realization of fundamental rights. The study undertakes normative, doctrinal, and jurisprudential analysis, reconstructing the historical and legal trajectory of the asset collection institute, from its roots in the Manueline and Philippine Ordinances, through the Civil Code of 1916, up to its current regulation under Articles 1,275 and 1,276 of the 2002 Civil Code, Articles 64 and 65 of Law No. 13,465/2017, and selected municipal legislation. The results confirm the initial hypothesis: the collection of abandoned properties constitutes a legal duty (poder-dever) of the municipal entity, whose omission, when legal prerequisites are met, opens space for the mayor’s accountability, transforming the findings of this dissertation into an innovative and important strategic tool not only for public policy but also for doctrine and jurisprudence, advancing the realization of the social function of property and the enforcement of constitutional norms capable of significantly improving urban and social realities.