Compensation of restrictions caused by landmark preservation: the transference of development rights in the Municipality of São Paulo / Compensação de restrições causadas por tombamentos de imóveis: a transferência do direito de construir no município de São Paulo

Resumo

Abstract

This paper debates, from a fundamental rights dogmatic standpoint, the theme of compensation of restrictions to property rights caused by landmark preservation in Brazil. Its objective is to assess when and how the transference of development rights provided in the City of São Paulo's master plan should be used as a compensatory mechanism for restrictions to the development potential of urban real estate. As a method, we analysed qualitatively seven rulings from four Brazilian Courts of Justice about compensations of restrictions to property rights caused by landmark preservation in Brazil. The result achieved by this research is that the transference of development rights under the Municipality of São Paulo’s legal regime, especially when not involving the transferring landmarked building’s divestiture, distorts the primarily compensatory nature of the instrument regulated by the City Statute. And its main contribution is the demonstration that the “incentive” factors prescribed by article 24, items III to VII, of the Zoning Statute and the adoption of the transferring land’s area as the calculation basis of the development potential’s formula under article 125 of the master plan, both of São Paulo, are deviations of purpose.

Keywords: Fundamental property right; Development potential; Landmark preservation; Transference of development rights; Compensation.