Extract
Finding a right to the city: exploring property and community in Brazil and in the United States.
ABSTRACT
Increasing poor people's access to property and shelter in urban settings raises difficult questions over how to define property and, likewise, how to communicate who is entitled to legal property protections. An international movement--the right to the city--suggests one approach to resolving these questions. This Article primarily explores two principles of the right to the city--the social function of property and the social function of the city--to consider how to better achieve social and economic justice for poor people in urban areas. Using Brazil as one example of a country incorporating these principles within constitutional and statutory provisions and employing these principles at the local level through ambitious and innovative property programs, this Article explores the potential application of the right to the city movement in the United States. Such a movement could incrementally advance moral and legal claims to a right to shelter through a more expansive and creative implementation of urban planning laws and land trust programs. TABLE OF CONTENTS I. INTRODUCTION II. EXPRESSIONS OF THE RIGHT TO THE CITY A. The Right to the City Movement B. Communities and Contested Property--Favelas and Loteamentos in Brazil C. The Struggle Between Private Property and the Social Interest D. The Meaning of the Right to the City 1. National Efforts--The City Statute 2. Local Efforts--Pro-favela and Participatory Budgeting III. APPLICATION OF THE RIGHT TO THE CITY--THE UNITED STATES A. Individual and Social Conceptions of Property B. Planning for Affordable Housing C. Occupation Claims--Squatters and Land Banks 1. Inventory Management and Transfers to Productive Use 2. Reforming Property Laws for Productive Use IV. CONCLUSION I. INTRODUCTION This Article is inspired by an international movement called the "right to the city" and by Brazil's adoption of some of the principles of this movement within new constitutional provisions and national legislation. The right to the city, popularized by the French philosopher Henri Lefebvre, incorporates two novel concepts: the social function of property and the social function of the city. The social function of property subordinates individual rights of property to social demands. (1) "In the formulation and implementation of urban policies the social and cultural interest must take priority over the individual right of property." (2) The social function of the city is not so succinctly summarized. "It contains concepts of inclusion, urban investments for the benefit of all residents, equitable distribution of resources, and environmental sustainability." (3) In part, it provides a context for the exercise of the social function of property. In Brazil, the social function of the city is applied by national statute to generally prioritize city residents' rights of participation and occupation. (4) These social concepts have directly shaped constitutional and legislative changes in Brazil; they have broadened opportunities for residents of urban areas to participate meaningfully in land use planning processes and opportunities for residents to acquire legally recognized property rights in the same areas. The most notable change in the law in Brazil is the granting of legal property rights to individuals in local, urban jurisdictions who are best described as "squatters." The "city," as used in this Article, identifies any location where people want to live. This location can be rural or urban and may be large or small. (5) The city also has symbolic meaning. It has meaning as a place of diverse interaction, conflict, and cooperation. One writer notes that "It]he city creates a situation, the urban situation, where different things occur one after another and do not exist separately but according to their differences." (6) People interact on the streets, in public squares, in sidewalk cafes, and in building lobbies. Similarly, Gerald Frug notes that "[a] primary city function--the primary city function--ought to be the cultivation and reproduction of the city's traditional form of human association.... Cities ... ought to teach people how to interact with unfamiliar strangers...." (7) The city is also a marker of identity. People live in Chicago, grow up in the suburbs of New York, or work in Washington, D.C. The city is a place in which diverse groups, distinguished by income, race, or other characteristics, engage in a competition for space. (8) For some, efforts within the competition are focused on excluding certain populations. Suburban communities incorporate to separate themselves from cities; some individuals live within the protections of gated communities, and some localities engage in zoning practices designed to limit housing opportunities for low-income individuals. (9) For others, the struggle centers on gaining inclusion to areas and amenities previously unobtainable. Within this latter group, these residents of the city seek to reclai...See the full content of this document
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