At the beginning of September, the Plenary of the Federal Supreme Court (“STF”) unanimously decided, within the scope of Direct Action of Unconstitutionality (ADI) 3,865, that productivity and social function are cumulative requirements to argue the inexpropriability of rural property for agrarian reform.

The ADI was filed to question the provision of articles 6 and 9 of Law 8,629/1993, on the grounds that these articles would violate the articles of the Federal Constitution that deal with the expropriation of rural properties for the purposes of agrarian reform for social interest, and were not applicable to productive properties. The authors of the ADI argue that productivity and the social function of property are distinct concepts and that the Federal Constitution defends the first concept as a requirement for inexpropriability. Asking for a different requirement would be unconstitutional.

Article 184 of the Federal Constitution authorizes the expropriation for agrarian reform of rural property that is not fulfilling its social function. Article 185 of the same diploma treats productive property as “not susceptible to expropriation for the purposes of agrarian reform”, and provides that “the law will guarantee special treatment to productive property and establish standards for compliance with the requirements relating to its social function”.

The STF decision in the ADI states that it is necessary to analyze both the use of the land and the social function of the asset in order to observe the rural property as productive.

The Supreme Court argues that it is possible to interpret that the concepts of productive property and social function are equated, with rural property having to comply with the constitutional requirements of: (i) rational and adequate use; (ii) adequate use of available natural resources and preservation of the environment; (iii) compliance with the provisions that regulate labor relations; and (iv) exploitation that favors the well-being of owners and workers.

For the STF, the interdependence of concepts is indicated, and it is not possible to recognize a property as productive without promoting its “appropriate rational use”.

Finally, the Plenary of the Supreme Court decided, regarding the interpretation of articles 6 and 9 of Law 8,629/93 in line with articles 184, 185 and 186 of the Federal Constitution that “If there is ambiguity about the scope that should be given to non-compliance with the function social through productive property, it must, at least, be admitted as necessary that the law can integrate the possible meanings of the options opened by the constituent. (…), the legislator’s option, (…), for an interpretation that harmonizes the constitutional guarantees of productive property with the social functionality required of all properties is in line with the Constitution. Thus, (…), there is nothing unconstitutional in the law (…) that opts for one of the possible meanings of the text”.

The Public Law, Regulatory and Infrastructure team is available if you have any questions.

By André Martins.