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Abstract

Chinese

The issue of urban vacancy is both a complex and a prevalent phenomenon in multiple contexts globally, providing an opening to address systemic issues of precarity. In this article, I explore the issue of urban vacancy in São Paulo, where the problem of vacant property has been highlighted for years alongside housing challenges and socio-spatial segregation. While São Paulo’s real estate market is often unreachable for the urban poor, a Brazilian constitutional directive on the social function of property – the obligation to use property to further the common good – enables municipalities to take punitive action against owners of vacant property through a triad of policy tools. Therefore, despite the often-exclusionary nature of vacancy, transformational possibilities may exist. Exploring the application of these tools, I view urban vacancy through a perspective on common property, untangling emergent contestations and opportunities for transformation.

Keywords

Brazil urban vacancy transformations urban policy precarity housing

Introduction

In May 2018, Wilton Paes de Almeida, a well-known vacant building in São Paulo’s Largo do Paissandu neighbourhood, in disuse since the 2000s and long inhabited by housing occupations, caught fire. Built in the 1960s, it was considered an example of modernity and avant-garde architecture, known as ‘Pele de Vidro’ (glass skin) due to its glazed facade. The fire caught the attention of the international media because of its connection to the city’s housing crisis (Victor et al., 2019). Indeed, recent figures paint a stark picture of the contradictions between Brazil’s high rate of 7906 million unoccupied dwellings and its deficit of 6355 million units, affirmed by the phrase ‘more homes without people than people without homes’ (Boulos, 2012; Fundação João Pinheiro, 2018). While homelessness cannot be solved only by using vacant property productively, the contradiction serves to highlight the grave nature of the situation. In this context, a constitutional directive in Brazil on the social function of property – the obligation to use property to further the common good – enables municipalities to take punitive action against owners of vacant property through a triad of policy tools.

Beyond the Brazilian context, urban vacancy is a prevalent phenomenon in a multitude of cities. The idea is based on complex visions of ‘obsolescence’ relating to multiple causes and effects (Buitelaar et al., 2021). As O’Callaghan and Di Feliciantonio (2021) discuss, the lack of clarity on what constitutes urban vacancy suggests a need for conceptual and empirical attention on the issue. Key to multiple processes, including urban regeneration (Freire Trigo, 2020) and resistance movements (Stevens, 2019), these fragmented literatures suggest that vacancy is under-theorised in urban studies. Still, vacancy gained new meaning following the COVID-19 pandemic as ‘the empty city became a key representation trope’ amidst changes in cities’ structures, people leaving urban areas, transport changes due to working from home and effects on commercial retail spaces (Florida et al., 2023; O’Callaghan and Di Feliciantonio, 2021: 1). Exposing cities’ fragilities under neoliberal regimes of governance and inequity in access to housing (Cardullo et al., 2018), the context presents an opening to address systemic issues of precarity amidst vacancy. Still, recognition of the scope of the issue relating to precarity was raised long before this (Monkkonen, 2019). As Ferreri and Vasudevan (2019) suggest, vacancy is a spatial process key in making precarious cities. Thus, focusing on abandonment views vacancy as disordering narratives of progress and decline relating to deindustrialisation and spectacular and culturally resonant locales (DeSilvey and Edensor, 2012). In some cases, vacancy connects to speculation and expected future price increases (Noterman, 2022b), what Davy (2020) calls ‘speculative vacancies’ when real estate is deemed an investment opportunity. I draw inspiration from O’Callaghan and Di Feliciantonio (2021: 7) in viewing urban vacancy as spaces of ‘contested activity, use and representation’ to problematise the idea and foreground vacant spaces as key nodes in urbanisation processes. Given the complexity of the issue, Caramaschi and Chiodelli (2023) suggest four conditions comprising emptiness: (1) uncompleteness– unfinished property due to property crashes or reduced profitability; (2) long-term vacancy– empty housing available through the market which is vacant due to reasons other than an ordinary building lifecycle; (3) under – and unoccupancy– property that is materially functional but fails to accommodate a full-time household; and (4) abandonment– empty property detached from the housing market due to its physical decay and inhabitability.

Taking these conditions forward, I examine the case of urban vacancy in São Paulo, Brazil, where vacancy has been a reality since the 1950s due to capital displacement from the city centre to the south-west, and considerable spatial segregation. As advocates have long suggested, São Paulo has more vacant property than families lacking housing. This may result in an unattainable real estate market for the urban poor, revealing vacancy as an urban status quo whereby real estate trumps well-being (Gonick, 2020). Since 2014, the city of São Paulo has applied tools to counteract urban vacancy, what Foster (2022) calls ‘sharing infrastructure’ when cities provide public goods by sharing spaces from existing infrastructure. Therefore, despite the exclusionary nature of vacancy, transformational possibilities may exist due to urban tools. I view urban vacancy through debates on the social function of property and the commons, viewing it from a perspective on common property to understand communities’ rights to access and use resources. In this article, I focus on the issue of urban vacancy, which has considerable relevance for housing precarity amidst housing crises (Ferreri and Vasudevan, 2019; O’Callaghan, 2024).

This article is based on an analysis of municipal data from São Paulo (2014–2023), municipal documents, plans and news articles, as well as 12 interviews in 2023 with key experts including current and former municipal staff – geographers, lawyers, planners and politicians.¹ In the following sections, I suggest seeing urban vacancy through debates on the social function and the commons, highlighting the notion of common property, before turning to the Brazilian experience and specifically to the São Paulo case. I untangle the complexity implicit in curbing vacancy, including emergent contestations and opportunities for nascent transformation.

Social function, property and the commons

Property is deeply entangled in planning debates, yet planning often fails to critique the impact of these assumptions on the nature of land for planning practices (Davy, 2012; Fawaz and Moumtaz, 2017). While ‘planning cannot escape its relationship to property rights’ (Jacobs and Paulsen, 2009: 141), the importance of private property in planning may be side-lined as planners often view land use distinct from property (Blomley, 2017). Despite property being ubiquitous in planning, its meaning is often unclear (Krueckeberg, 1995). Recent scholarship highlights these unquestioned ideals, resulting in giving in to a ‘property effect’ replicating ‘inequalities inscribed in existing property relations’ (Fawaz, 2017: 379).

Connections between land and ownership often embody a view of property termed the ownership model, attributed to 18th-century British jurist William Blackstone, holding that ownership is legitimate if property was obtained justly and transferred consensually (Kohn, 2016). Said to be ingrained as the dominant Western property ideology, it exerts ‘a powerful imaginative hold’ (Blomley, 2005: 125). As Blackstone (1766 [1979]: 2) described in an oft-quoted passage, the right to property is ‘that sole and despotic dominion which one man claims and exercises over the external things of the world, in exclusion of the rights of any other individual in the Universe’. As Blomley (2005) suggests, this assumes that a single owner enjoys rights associated with ownership, including the right to exclude others, motivated by self-interest. Based on classical arguments, the idea is that each land parcel is distinguished from others by definite boundaries, claimed by a singular owner distinguishing their property interests from others (Fawaz, 2017).

Without a more critical approach to this idea, planning practice confronting injustice cannot proceed, while planning may become depoliticised (Dorries, 2022). Thus, Blomley (2005) suggests uncovering the complex realities of property. One alternative is the notion of the social function of property, or the obligation to use property to further the common good (Ondetti, 2016). Scholars generally link the emergence of the social function to French jurist León Duguit through a series of lectures in Buenos Aires in 1911, despite Duguit not being the idea’s sole inspiration, as in Brazil (Cunha, 2011). Influenced by the work of Auguste Comte, Duguit (2019: 37) emphasised that property was not a right but rather a social function, noting that ‘proprieté’ is ‘determined by an interdependence of the different social elements’, meaning ‘that individual proprieté ceases to be a right of an individual to become a social function’. In this context, the owner has an obligation to make property productive to elevate both the owner but also society, recognising that wealth controlled by owners should be available to the community (Foster and Bonilla, 2011). While not a socialist nor eschewing private property, Duguit held that the state should protect property when it fulfils a social function, as owners should not use their property against others. In recognising private property, Duguit critiqued the 19th-century liberalism of individual ownership rights, suggesting that property should have a social function, meaning it should be used productively (Klink and Ignatios, 2024). This related to a critique of absolute property rights based on recognising solidarity, drawing on considerable work of the time (Crawford, 2019; Mirow, 2010). A key idea was that interdependence among people required limits on private ownership.

Despite developing in law, a natural fit with the commons provides an alternative avenue to understand the social function (Foster and Iaione, 2016). As Pecile (2022) explains, reclaiming the social function in political praxis means affirming a constitutionally guaranteed right to the commons, embedded in collective property-based frameworks challenging the commodification of urban space, even resisting threats of enclosure by economic elites (Harvey, 2012). Such assertions claim a common stake in resources – like vacant land – constituting resources to be shared or made accessible to urban inhabitants (Foster and Iaione, 2016). As Kohn (2016: 12) suggests, the commons relates to the idea of social property, in that a city ‘can be lived as the comedy of the commons where we build something and enjoy it together’. Despite abundant literature on common pool resources (Ostrom, 1990), its translation to urban contexts has been slower, even operating at the legal margins due to the primacy of the ownership model (Noterman, 2022a). Filling this void, Foster and Iaione (2016) suggest that the commons is a normative claim to resources, opening up access to a good by recognising the community’s right to access and use a resource, otherwise under private or public control due to the social value such access would generate for the community. Thus, unlike Duguit’s intention which related to a more market-orientated project around the collective interest, seeing the social function through the commons supports how everyday users negotiate the management, governance, use and appropriation of space. Drawing on the Brazilian context, Moretti (2021: 162) suggests that:

incorporating the urban commons approach into the agenda of urban reform, giving centrality to access to land, can enhance the concepts of the right to the city and the social function, concepts that will then be analysed identifying points of contact with the theory of common goods.

These debates thus have considerable relevance for the material dimension of the right to the city, as the possibility of participation in formulating urban policy contributes to the application of the social function of property, and vice versa (Foster and Iaione, 2016; Friendly, 2020; Moretti, 2021).

Extending these debates, I employ the idea of common property as a right not be excluded from the use of a thing or space predicated on occupation and use (Blomley, 2016; Macpherson, 1978). For Macpherson (1978: 5), ‘common property is created by the guarantee to each individual that he will not be excluded from the use or benefit of a thing’, distinguished from private property, which is ‘created by the guarantee that an individual can exclude others from the use or benefit of something’. Common property is framed by rights language, in that the spatial commons is an instrument of inclusion, fostering collective solidarity and social capital. Property debates imply exclusion, as the poor are often restricted to undesirable spaces due to being excluded from spaces of wealth; therefore,

‘by taking rights into account, planners respond to property (or spatial exclusion) and social citizenship (or spatial inclusion). They shape the allocation of land uses and the distribution of the benefits and burdens of property; they define the citizens’ right to the city.

(Davy, 2009: 231)

Likewise, planning is key both in land use allocation but also in managing land use, given its role in regulating the social function of property and an adequate distribution of benefits and burdens associated with property. Therefore, viewing vacancy through a perspective on common property suggests a way to understand the community’s right to access and use resources. Moreover, employing common property also serves to highlight the ambiguous nature of the social function itself, given the combination of private property and fulfilment of social function. With this in mind, in the following sections I explore the experience of the social function in Brazil and its application in São Paulo.

The social function of property in Brazil

The social function has played a key role in Brazil, as in other Latin American countries (Ondetti, 2024). In Brazil, the idea first entered the legal system with the 1934 Constitution, asserting that the right to property cannot be exercised against the social or collective interest. Although the genealogy of this idea in Brazil is disputed in the literature, arguments for land reform can be traced to politician and intellectual Alberto Torres in the 1910s, who critiqued the system producing few export commodities on large estates, serving to enrich landowning elites (Pinto, 2010). While not advocating land expropriation, Torres advanced the state’s leading role in distributing unused land (Ondetti, 2021). Fitting with demands to divide large landholdings, the idea was motivated by economic and redistributive rationales given a contrast between large estates and ‘the millions of peasant families who scraped out a precarious living on tiny holdings or on other people’s land’ (Ondetti, 2016: 348). The 1934 Constitution protected the right to property on the basis that it did not exercise against social or collective interests, but the social function was an external limitation imposed by governments on the exercise of property rights (Cunha, 2011). This notion was implicit rather than explicit (Ondetti, 2021), asserting that ‘the right to property is guaranteed, which cannot be exercised against the social interest’ (Maldaner, 2015: 73). These ideas were not accepted in full form immediately, and were subject to considerable debate in these years.

Despite subsequent constitutions referring to this idea, following 20 years of dictatorship and a return to civilian rule, Brazil’s 1988 Constitution recognised the social function and the tools to advance it, and explicitly discussed how to realise it (Crawford, 2019; Friendly, 2020).² The Constitution thus listed a triad of policy tools: (1) compulsory parcelling, building or use (parcelamento, edificação ou utilização compulsório, PEUC); (2) progressive property taxes (known as IPTUP); and (3) expropriation.³ While the Constitution provided seemingly powerful tools, their use depended on local conditions (Ondetti, 2016). The Constitution had established that private property was a fundamental right if it achieved the social function, yet it was defined by master plans and other local laws (Fernandes, 2007). Following heated debates over the social function during the 1987–1988 Constituent Assembly, the concept was subordinated to elaborating a master plan by municipalities, where the interests of owners are strongly represented in city councils (Bonduki and Rossetto, 2018). The urban social movements were forced to accept that enforcing the social function would be subject to master plans, despite rejecting them as elitist strategies, making the approach merely rhetorical (Caldeira and Holston, 2015). Later, the 2001 approval of the Statute of the City (Estatuto da Cidade) defined the constitutional provisions on the social function, noting that urban property fulfils its social function when it meets the requirements for ordering the city through the master plan to meet citizens’ needs regarding life quality, social justice and economic activities. The right to the city and its policy mechanisms were operationalised through the social function, tools to realise it and participatory processes (Friendly, 2013, 2020). Urban policy would realise the social function through democratic participation and ensuring the right to sustainable cities, supporting a new ‘urban ethics’ based on a social contract and citizenship practices recognising marginalised actors (Câmara dos Deputados, 2005). As Crawford (2019: 262) suggests, ‘one could scarcely find a section of a law more consistent with the ideals of social function theory’. Moreover, despite a seeming fit between the social function and right to the city, these ideas developed from highly distinct intellectual traditions. The concept of the social function, inherently a reformist market-based coordination of individual property (Brajato, 2020), emerged ‘as a compromise: while private property was regarded as the cornerstone of the institutional structure of market-based urban development, it should contribute to wider collective interests organized around urban justice and sustainability’ (Klink and Ignatios, 2024). In this context, the social function represented a middle ground, alleviating some challenges of private property and the basic principles allowing people to benefit from property (Crawford, 2019).

The tools related to the social function are intended to curb land speculation as a capital gain, taking punitive action against owners of vacant urban land (Câmara dos Deputados, 2005). The first, PEUC, compels owners to use vacant land, using property by employing the social function. This impels vacant property into the market, guaranteeing its social use within a timeframe specified in the master plan, as properties should be used following an agenda defined by cities through their planning decisions (Leite et al., 2020). The delimitation of areas to apply PEUC is an obligation of master plans. After detailing PEUC in a master plan and municipal law, the municipality identifies vacant areas and notifies owners to give properties an adequate use, who may contest the notification to annul the procedure or demonstrate insurmountable obstacles. PEUC should be linked to social housing targets, ensuring vacant land is used for social purposes or revitalisation. If owners fail to react or their challenges are dismissed, the municipality can impose IPUTP (progressive taxation) to penalise property retention, raising the property rate gradually and ensuring the delay incurred in waiting speculatively becomes economically unviable (Barros et al., 2010).⁴ If the owner fails to act after five years, the municipality may expropriate the land, paid in public debt bonds, giving it an adequate use in five years by developing, selling or allowing private developers to develop it, whereby ‘public authorities compulsorily dispossess someone of property and acquire it, through compensation, based on a public interest’ (Mello, cited in Ministério da Justiça, 2015: 44). Whoever acquires the land must develop it, observing deadlines of PEUC. The process in São Paulo is shown in Figure 1. Idealism aside, the procedures to implement these tools are complex, involving administrative procedures and institutional articulation, and ensure reasonableness and legal certainty to avoid arbitrary use, indirect expropriation and fraud.

Figure 1.

A triad of tools to apply the social function of property.

These tools date to the 1960s, when an urban reform proposal included the idea of vacant property as unlawful, underscoring the role of land ownership as ‘key to the radical changes needed’ in Brazil (Bassul, 2005; Maricato, 2010: 14). Land was deemed key for transformation, and speculation an ‘enemy’ to be opposed (Costa and Santoro, 2019). By the 1970s, vacancy was highlighted when the National Urban Development Council included progressive property taxes (IPTUP) for vacant land as one of the tools in a proposed Law of Urban Development (Cardoso, 2012). Fernandes (2022) suggests the daring nature of this moment as it proposed granting legal materiality to the social function amidst the context of the dictatorship. During democratisation in the 1980s, the idea gained relevance in proposals to curb speculation and promote urban reform (Grazia, 2003). In 1983, a proposed national law on urban policy included PEUC within an urban reform agenda. Driven by the national urban reform movement during the Constituent Assembly, these ideas were included in the Constitution and the Statute, recognising ‘that it is not just a matter of occupying empty land’ but ‘of giving substance to its social function through the offer of affordable housing or services’ (Cardoso, 2012: 21).

Curbing vacant property in São Paulo

Despite other cities previously implementing tools to curb vacancy, São Paulo stands out in its volume of notifications and politico-institutional innovations, making it an emblematic case compared to other cities implementing PEUC.⁵ While exponential growth in the city occurred at the turn of the 20th century due to immigration, by the 1950s, capital displacement from the centre to the south-west resulted in considerable amounts of vacant property (Nadalin and Igliori, 2017; Villaça, 2001). Spatial segregation engendered access to benefits for wealthy populations, unlike those in peripheral areas denied their right to the city (Maricato, 2000). In Brazil, debates on vacancy in the 1970s showed how cities expanded to peripheral areas, leaving vacant land at the interstices of this growth, outside the market in awaiting real estate appreciation (Cardoso, 2012). Indeed, Silva (1999) indicates that vacancy reached 17% in São Paulo by 1999, and although it reduced between 2000 and 2010, gains by property owners led to a renewed market and rising prices (Prefeitura de São Paulo, 2014). As Akaishi (2022) explains, owners of vacant property in São Paulo are highly varied, including individuals, banks, property managers, churches and charitable institutions, owning from one to many buildings, resulting in a passive form of speculation.

The idea of curbing vacant property emerged gradually in São Paulo starting in 1985, and various master plans by governments of different political parties included tools to curb vacancy (Fernandes, 2022). Likewise, by the mid-1990s, social movements began occupying vacant central buildings and proposing solutions, showing how to put the social function into practice and the role of struggles in this process (Barbosa and Pita, 2006). Following the Statute’s 2001 approval, São Paulo’s 2002 master plan under Partido dos Trabalhadores (Worker’s Party, PT) Mayor Marta Suplicy included these tools, yet failed to prepare a law regulating them. Bonduki and Rossetto (2018: 217) suggest that disinterest by governments of the time did not provide continuity to this process, resulting in a failure to confront ‘the powerful sectors that opposed the instrument’; thus, the Legislature was left to take the initiative.

Building on previous developments, the first bill to regulate PEUC in São Paulo was presented in 2005 by PT councillor Paulo Teixeira, yet was not approved. Following a frustrated attempt in 2009 to approve a new master plan, another bill by then PSDB councillor José Police Neto resulted in approving Law 15.234/2010, following ‘intense negotiation’ amidst a difficult context (Bonduki and Rossetto, 2018: 218).⁶ Contradictions surrounded the fact that tools intervening in property were approved in a patrimonial political environment like Brazil. As Campos (2019) suggests, this moment can be understood based on Brazil’s coalition presidentialism (Abranches, 2018), playing out municipally. As Police Neto explains, the law’s approval resulted from a political environment relying on political parties from both sides of the spectrum through ‘agreement … after almost two years of work on the project … and then a consequent sanction from the Mayor’ (Interview 10). Despite little consensus about the process from the actors involved, including PT councillor Nabil Bonduki, one result was to begin notifications, despite this being in discordance with the Statute. The first notifications in 2012 were administered by the city’s decentralised subprefeituras through public calls to property owners, yet this failed to impose sanctions for vacant property, and its decentralisation resulted in multiple approaches across the city (Fernandes and Ferreira, 2021). Thus, ‘a centralised structure capable of unifying the action and enabling the uniformity of the products’ was deemed necessary (Campos, 2019: 164).

In 2013, Fernando Haddad (PT, 2013–2016) became Mayor, instituting municipal administrative reform and establishing a window of opportunity to alter the institutions governing the social function of property (Campos, 2019). During a public hearing in 2013, Police Neto proposed a dedicated entity on the social function (Câmara Municipal de São Paulo, 2013), initially called the Department of Control of Social Function of Property (DCFSP), and later the Coordination of Control of the Social Function of Property (CEPEUC). Considered a milestone on the issue (Ministério da Justiça, 2015), it is situated within the Secretary of Urban Development (SMDU), unlike in Maringá where PEUC is located in the finance department. Led by Fernando Bruno Filho, DCFSP has been recognised as having considerable autonomy, key to implementing PEUC in other cities, and thus this separation ‘created a different logic’ (Interview 8).

The 2014 master plan added content to the tools, highlighting the social function as a dimension of the property right (Costa and Santoro, 2019). As Haddad suggested, the productive use of land was key: ‘The law was constructed to not be worth speculating … Everything was built so as not to tax, surcharge or expropriate, but so that the owner can allocate it’ (Secretaria Executiva de Comunicação, 2014). The approach followed a territorial and integrated logic involving other tools, including social housing (known as ZEIS) and urban revitalisation (called urban operations), as both link housing production to minimum social housing percentages. Indeed, the objective ‘was not [about] fundraising, on the contrary … The idea was to boost use and make the properties suitable for the area in which it was located: in ZEIS, in the centre, in urban operations’ (Interview 5), suggesting its focus was on provoking use rather than on taxation. The master plan specified ZEIS 2, 3 and 5 and two urban operations (Centro and Água Branca) to apply PEUC; this perimeter was later broadened to include subprefeituras Sé and Mooca, the Eixo de Estrutuação–Santo Amaro.⁷ One key difference in São Paulo was that, in addition to unbuilt and subutilised properties, unused properties were also included (see Figure 1).⁸ The first notifications were designed to be rigorous through considerable evidence, creating a culture of transparency without leaving gaps leading to judicial contestation (Brajato, 2020; Campos, 2019).⁹ As Fernando Bruno noted in an interview, Haddad explained that:

Everyone is watching São Paulo … he spoke in a very confident way. Let’s start in a way that doesn’t run the risk of annulment, legalisation, or failure … So let’s gain legitimacy in notifications. The notifications will be perfect, so we can have legitimacy. (Interview 4)

Quantitatively, the results of notifications have been ‘expressive’, as Moretti (2020) suggests, shown in Figure 2. Until 2023, 1934 owners were notified due to unbuilt, subutilised or unused properties. Of this total, 365 fulfilled the obligation to use their properties (18% of those notified). Of 1934 notifications, 49.6% were classified as unused, 32.6% as unbuilt and 14.7% as subutilised. Figure 2 shows the trend for properties subjected to progressive property taxation (IPTUP), of which 188 reached the fifth year in 2023, while 258 were cancelled (Coordenadoria de Controle da Função Social da Propriedade, 2024). The notified properties are mostly located in the city centre and within ZEIS and urban operations, where the master plan aims to increase population density and encourage diversified uses (Costa and Santoro, 2019; Fernandes and Ferreira, 2021). That is, PEUC is applied in ZEIS 2, 3 and 5, in two urban operations (Centro and Água Branca) and in subprefeituras Sé and Mooca. Considerable notifications occurred in ZEIS areas prioritised for social housing in central areas (Sé, Mooca and Ipiranga for ZEIS 3 and 5, and across the municipality in ZEIS 2) (Fiorelli, 2021; Prefeitura de São Paulo, 2022). At the same time, the relatively high number of cases subjected to IPTUP following owners’ failure to react to notification also suggests the ineffectiveness of this tool to compel owners to comply with the social function. As property in Brazil is undervalued in municipal registers, tax considerations may play a minor role in owners’ decisions regarding vacancy.¹⁰

Figure 2.

Number of notified properties and IPTUP by year, 2013–2023.

Specifically regarding properties whose owners fulfilled their obligations related to the social function, Figure 3 shows those located in ZEIS by category, while Figure 4 shows vacancy category within ZEIS, where considerably more properties were in the unbuilt category. While the unused category is the lowest, the municipality’s report for the 2023 revision of the master plan suggests that ‘the use of unused properties, especially in the central area, is essential to contain the sprawl of the city, also avoiding long journeys for the population, especially low-income people’ (Prefeitura de São Paulo, 2022: 138). Likewise, the same report suggests that the location of properties complying with notifications is evident across all areas prioritised for PEUC, but especially in the Água Branca urban operation where 41% of properties complied. The report also highlights a link between the location of vacant properties and areas equipped with infrastructure, public transport and the provision of well-located housing. Yet as Fiorelli (2021: 20) suggests, such results in urban operations indicate that ‘in places where there is greater real estate pressure, owners tend to fulfill their obligations more quickly’.

Figure 3.

Notified properties and properties that complied with notifications per ZEIS category, 2014–2020.

Figure 4.

Notified properties and properties that complied with notifications in ZEIS per category of vacancy, 2014–2020.

Despite inducing the use of vacant property, however, Akaishi (2022) suggests that no buildings were converted to social housing, as most are office buildings reactivated with service activities rather than residential uses, such as the example shown in Figure 5. As Akaishi (2022) explains, an analysis of the uses of converted buildings suggests that the application of these tools highlights other logics not intended by the legislation. Here, Akaishi (2022) highlights a building that complied with the social function by installing a rotating parking lot on the ground floor of the building, and one that installed metallic roofing to comply with the social function. Likewise, the municipality’s report highlights the need for ‘an in-depth qualitative study in relation to the intended uses, especially to verify the allocation of housing’ (Prefeitura de São Paulo, 2022: 136), also indicating the lack of qualitative information of implementation of projects following notification. As a result, while the application of these tools could – in theory – curb the use of vacant property towards social uses, the results thus far do not demonstrate effectiveness in terms of guaranteeing democratic access to land.

Figure 5.

Transformation of a building on Rua José Bonifácio (Subprefeitura Sé) in August 2016 and May 2021.

Beyond these results in implementing the tools as shown above, further difficulties relate to political priorities, coordination and resource challenges, disarticulation among socio-political forces in city council, private-sector push-back and lobbying efforts by real estate-sector actors (Leite et al., 2020; Paula, 2017). Given the political nature of PEUC and that its continuity requires long-term support, the actors, political context and institutions are key in its governance. In short, understanding the context rests on ‘politico-institutional tensions and sociopolitical conflicts in Brazil’ (Fernandes, 2020: 117). An example of the role of politics for the tools’ implementation occurred in 2017, with a decrease in notifications – when João Doria (PSDB) assumed power – evidencing a different attitude towards complying with the social function and discontinuity in applying the tools (Fernandes and Ferreira, 2021), shown in Figure 2. Police Neto explains that:

Mayor Dória did not understand PEUC … He interrupts notifications, questions procedures and we enter a limbo period of 15 months. Then Bruno Covas becomes Mayor, partially understands what [PEUC] is. The changing Secretaries who take over understand but are not dedicated, and PEUC loses force. The department directors also lack the protagonism of Fernando Bruno. (Interview 10)

Thus, the decrease in notifications in 2017 relates to a political decision to deplete CEPEUC’s power through ‘a change in understanding of how it should work’ (Interview 12), and its ‘lost protagonism’ (Interview 10). While notifications began returning in 2019, the COVID-19 pandemic complicated the process.

Another example of these tensions is objections made by property owners through administrative procedures. As one interviewee suggests, the primary motives of owners contesting PEUC ‘is for economic reasons. So, the property is mine’ (Interview 3). Objections focused on individual property rights and perspectives on future gains, often affirming that ‘the property was “in use”’, representing ‘failed attempts to convince public forces of the property’s occupancy, hiding its vacancy and sometimes revealing the ongoing speculative processes’ (Costa and Santoro, 2019: 76). Other claims include property being available for rent or sale or being in the process of real estate transaction, which fails to guarantee the property’s effective use, and that the property was awaiting or under construction (Costa and Santoro, 2019). Following objections made through administrative procedures, some judicialisation occurs when property owners challenge decisions, which then proceed to the level of the courts. As one interviewee suggests:

Owners normally, when the objection is expressed, do not have a well-studied defence. There are few cases that go to the judiciary, compared to the universe of cases that we have. And even when there is an objection, there are few cases in which we grant the objection, in which we give reason to the owner. Even after 10 years of application of the instrument, the owners still did not know how to defend themselves. (Interview 11)

Despite procedural rigour in designing the process, within the judiciary, Moretti (2020: 199) found 22 judicial processes challenging PEUC, suggesting that ‘judicial questioning of some notifications … was inevitable’. Yet given relatively few cases of judicialisation in São Paulo, challenges with PEUC are not – perhaps surprisingly – related to the judiciary. Indeed:

in very few cases did the judiciary actually overturn the administration’s decision. This shows great potential for the instrument, as long as there is adequate regulation. On the contrary, the judges recognise the essence of urban planning to regulate the social function. (Interview 11)

However, while some owners complied with the social function, these have not resulted in using the space for social housing, highlighting disconnects between government priorities and the social function. While it can be said that the tools are being used, this ‘is circumscribed from what it pretends’ (Interview 6). This is because, to reach the goal of funds being directed to social housing, PEUC should dialogue with public policy, as one interviewee suggests:

You can’t just apply PEUC and let things happen naturally. I think there is a lack of articulation of PEUC as a municipal programme, so you don’t solve the problem of these properties … This is São Paulo’s biggest problem, from the point of view of expectations, of having a strategy, defining priority perimeters. (Interview 8)

Despite some effectiveness in applying PEUC quantitatively and according to the objective of curbing property retention, the logic ‘continues to follow the rationality of appropriating urban land in an extremely unequal and desegregated city’, suggesting that results may not translate into democratising access to land (Akaishi, 2022: 270). This suggests that the goal of the tools is not an end in itself but a means to boost strategic objectives and expand access to urban land (Bonduki and Rossetto, 2018).

Further, efforts to apply the social function are weakened, as the third tool in the triad – expropriation with compensation in public debt bonds – has not yet occurred. Until recently, such compensation was unfeasible due to a legal dead end, according to Article 182 of the Constitution, whereby payment of public debt bonds must be approved by the Federal Senate. Without using expropriation, the possibility of using Article 7 of the Statute allows the maximum IPTUP rate to continue until the obligation is fulfilled, creating an impasse after reaching year five (Ministério da Justiça, 2015). However, in 2022, the municipality of São Paulo paid off its debt due to an agreement at Campo de Marte, making it possible – theoretically – to issue public debt bonds (Freitas, 2023). While expropriation has not yet occurred, signs are growing that some buildings could be expropriated (Prefeitura de Sáo Paulo, 2024). Still, most municipalities – even São Paulo – do not have the regulations to apply this. Moreover, despite the possibility of using it, ‘expropriation, which was very much a sanction at the time, had the character of a penalty; today perhaps there is not so much of a penalty, because these titles are worth a lot’ (Interview 11).

Still, the idea of curbing vacancy is incipient in Brazil, subject to debate and changes. While scrutinising the challenges is key, also important is recognising its long-term nature, which:

bets, to some extent, on postponing the confrontation of these eminently political conflicts to a time when, it is hoped, the instrument itself has demonstrated to society its technical merit based on its efficiency in addressing the problems it proposes to remedy. (Paula, 2017: 185)

As interviewees suggest, the tools’ temporality is pivotal, as Brazilian cities have changed considerably since the tools were conceived when city dynamics were decidedly different. According to a CEPEUC staff member, ‘everyone expected that IPTUP would be for a minority of properties, and that expropriation would be a very rare case’ (Interview 11), which is not shown quantitatively. Despite relatively few notified owners fulfilling the obligation to use their properties, results should be viewed within a context of considerable challenges with vacancy in São Paulo.

In this context, possibilities are emerging for complementary ways to carry out expropriation. One option, included in the 2023 revision of the master plan, is expropriation by public auction (hasta pública), whereby the municipality declares the public utility of a property, sold at auction by a private entity. Critics suggest that this would lead to considerable judicialisation and even manipulation due to the business nature of this transaction (Interview 9). An alternative is a form of flexible negotiation with owners called a social interest real estate consortium, whereby owners lacking funds transfer their property to the municipality, which carries out construction, returning the value to the owner in plots of land or real estate units at the value before transformations (Costa and Santoro, 2019). Indeed, the social function need not only be fulfilled by applying the triad of tools, which are only a ‘toolbox’, subject to being appropriated by the real estate market, or its application may not be effective when dissociated from the political arena (Brajato and Denaldi, 2019). Disconnected from broader planning strategies, PEUC cannot achieve what was originally intended within the context of urban reform. This suggests that progress can be made by applying the tools through an approach based on common property, as one interviewee suggests: ‘if we don’t place a weight on [the social function as] an obligation and a right … we won’t advance, unfortunately’ (Interview 7). Therefore, this framing by rights, guaranteed through common property, provides an avenue to advance future debates.

Conclusion

Nationally, the difficulty of applying these tools was challenged due to a movement dismantling Brazil’s urban and legal order amidst de-democratisation, including derailing PEUC (Alfonsin et al., 2020). While ultimately terminated, this would have entailed a setback of a century of jurisprudential efforts regarding collective property. Highlighting pressures by financial actors over urban land, such challenges suggest a need to rethink the fragilities produced under property regimes. At the same time, as suggested above, private property is central in Brazil, and therefore land ownership:

is an object of appropriation and exchange value, which can provide owners with extraordinary pecuniary and political gains through land speculation. It may not directly generate income, but its ownership confers political and economic power over land use. It is a form of primitive accumulation from which real estate merchant capital emerges. (Cano, 2011: 188, cited in Akaishi, 2022)

As a result, while struggles around the social function of property have antagonised practitioners of such ‘primitive accumulation’, the way it has been inserted into legislation has not fully tackled the speculative retention of property (Fiorelli, 2023).

Yet, despite these evident challenges, the social function does have considerable visibility in Brazil and exceptional rhetorical force. Even modest results thus far and limits on real estate developers show how the social function ‘has made its way firmly into the Brazilian judicial imagination’ (Crawford, 2019: 263). Following a perspective on common property to foreground communities’ rights to access and use resources, a way forward in this context lies with the tactics of social movements and the message suggested by their occupation of central buildings.¹¹ As a legal expert suggested:

if the agenda of the right to the city is the fulfilment of social function, occupying what is empty is asserting the right to the city. And it is deeper, because it is about asserting the right to the city not just by occupying what is empty but by claiming a place in the city, which is a central place, not a peripheral place. (Interview 9)

Since the 1990s, social movements have been occupying vacant properties in São Paulo to popularise their struggles and claim to rights, what Irazábal (2018) terms counter land-grabbing. Through occupations, movements reveal a key contradiction: restricted land access within an exclusionary housing market with a profound housing deficit (Boulos, 2012). Housing movements base their right to occupy abandoned central buildings on the premise that they all should have a social function (Donaghy, 2018). Occupations provide temporary accommodation for families in precarious conditions and challenge the absence of housing policy, highlighting contradictions between the housing deficit and vacancy (Earle, 2017). By proclaiming occupy, resist, construct, dwell (ocupar, resistir, construir, morar), the message is a struggle (luta) for housing rights (Stevens, 2019). Such occupations confront the legal order regarding property rights while demanding its effectiveness, guaranteeing the right to decent housing and that private property fulfil its social function, enforced by the state though policy tools. As Crawford (2017: 19) explains, ‘a challenge for the institute of social function is precisely the need to fill it with content that protects everyone’s interests’. Highlighting discourse and actions by those left out of urban development is therefore a powerful statement towards a just and inclusive process of urban policy in the face of profound challenges to the movements. Therefore, viewing debates on urban vacancy through the notion of common property highlights both challenges to injustice and inroads towards change in urban settings.

Footnotes

The author would like to thank the research participants in São Paulo for their time and effort in helping with the article,Claudia Affonso for her help with the data and support with initial ideas on the article,and Fernando Bruno Filho for his help during the research.

Declaration of conflicting interests

The author declared no potential conflicts of interest with respect to the research,authorship,and/or publication of this article.

Funding

The author received no financial support for the research,authorship,and/or publication of this article.

ORCID iD

Abigail Friendly

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Common property in the city: Curbing urban vacancy in São Paulo

Abstract

Keywords

Introduction

Social function, property and the commons

The social function of property in Brazil

Curbing vacant property in São Paulo

Conclusion

Footnotes

Declaration of conflicting interests

Funding

ORCID iD

References