Brazilian Regularization of Title in Light of Moradia , Compared to the United States Understandings of Homeownership and Homelessness

A” who owns Blackacre. In Audrey McFarlane’s words, these studies reveal, in contrast to the general assertion that homeowner confers stability, “an alternate reality of property ownership: a reality of recurring instability.” It would also behoove United States property scholars to consider regularly and systematically various instances of more-orless stable informal communities and their uses of legal and extralegal property. This might well take the form of Elinor Ostromlike case studies. Some such scholarship exists. In addition to colonias, tent cities are emerging (again) in these hard times, and perhaps in response a study of tent cities is emerging as well. Stable community gardens are also possibly relevant to the matter at hand. Michele Anderson’s project on unincorporated urban edges is also useful. Typically undisciplined by a general law, or at least less so, these informal dwelling arrangements in some sense share the characteristics of favelas and other types of informal communities in Latin America and the Global South. More study of various informal dwelling arrangements in the United States and their uses of property language might also better inform the ongoing theoretical debate about where property comes from and how it lives, breathes, and functions. Act, 19 J. AFFORDABLE HOUSING & COMM. DEVELOPMENT L. 345, Spring/Summer 2010; Pindell, supra note 2, at 473-78 (considering land banks as a United States analog to Brazilian right to the city measures). 285. McFarlane, supra note 27, at 860. 286. Annette Kim notes the similarity between Ostrom’s case study work in the area of natural resources and case studies of informal housing. Annette M. Kim, A Market Without the ”Right” Property Rights: Ho Chi Minh City, Vietnam’s NewlyEmerged Private Real Estate Market, 12(2) ECONOMICS OF TRANSITION 275, 279 (2004). 287. See, e.g., Larson, supra note 26; Jane E. Larson, Free Markets Deep in the Heart of Texas, 84 GEO. L.J. 179 (1995); Ward et al., supra note 33; Ward, supra note 219; WARD, supra note 207. 288. See, e.g., Loftus-Farren, supra note 26. 289. See, e.g., Foster, supra note 181. 290. Anderson [2010], supra note 26; Anderson [2008], supra note 26. For example, one might productively compare Peter Ward’s observations a decade or so earlier of the way in which poor living conditions in Texas colonias were maintained and ignored because they were not incorporated into cities but remained part of peripheral country jurisdictions. Ward, supra note 219, at 255 (observing that the weakness, lack of effective process, and failure to provide services of county governments contribute to the development of informality in Texas colonias); WARD, supra note 207, at 118 (same). 291. See, e.g., Dyal-Chand, supra note 27 (using United States poor and informal housing to test de Soto’s hypothesis as to the effect of formal title on informal communities in the global South); Ward et al., supra note 33 (comparing inhabitants of colonias along the Texas/Mexico border to those living in informal communities in Mexico and Latin America). \\jciprod01\productn\I\IAL\44-2\IAL206.txt unknown Seq: 52 1-NOV-13 13:36 310 INTER-AMERICAN LAW REVIEW [Vol. 44:2 Often, United States jurisprudence fails to pay any attention at all to informal communities. Moreover, it may well dismiss a general, aspirational rights framework that might validate why we should care how such informal communities function—including moradia, right to the city, social function of property, and so on. One of the purposes of the social-obligation theorists is and should be to remedy that gap in our account of property. They should tell us about how dwelling works, not just formal ownership. Sheila Foster’s accounts of the functions and perils of urban commons might be one place to start. The resources managed by informal arrangements could well be thought of in property terms. A fundamental theoretical question is whether property law and jurisprudence are to be local and concrete or universal and abstract. If anything is to be gleaned generally from this Essay, it is that accounts of housing, homes, homelessness, and dwelling require attention at the local level, not beginning with some abstract account of property ratified by a legal monist approach. Property jurisprudence around homeownership requires study in situ, and being aware of what has been called the “interlegality” of formal and informal property systems. What is required strikes me as not unlike the work that Elinor Ostrom and those working with her have produced when they study varied ways of managing common pool natural resources by a local community, from the bottom up, as it were. And indeed Sheila Foster has argued that informal property housing systems often are, precisely, bottom-up solutions to managing urban commons of the sort addressed by concepts like moradia and the right to the city. Accurate descriptions of informal property systems will help us better to 292. Cf. Iglesias, supra note 131 (discerning several strands in homeownership jurisprudence, some of which incorporate connectedness and others of which reflect classical liberal views). 293. Sheila R. Foster, Collective Action and the Urban Commons, 87 NOTRE DAME L. REV. 57 (2011); Sheila R. Foster, Urban Informality as a Commons Dilemma, 40 U. MIAMI INTER-AM. L. REV. 261 (2009); Foster, supra note 181. 294. See generally Bonilla Maldonado, supra note 233. 295. Boaventura de Sousa Santos, Law; A Map of Misreading: Toward a Postmodern Conception of Law, 14 J. L. SOC’Y 279, 297-98 (discussing legal pluralism and the concept of interlegality). 296. See, e.g., ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION (1990). 297. Foster [2009], supra note 293; see also Foster [2011], supra note 293 (articulating an account of local community responses to managing shared urban resources, using Ostrom’s general approach). Foster’s argument goes a good ways towards establishing that inquiry into the management of urban resources has to \\jciprod01\productn\I\IAL\44-2\IAL206.txt unknown Seq: 53 1-NOV-13 13:36 2013] BRAZILIAN REGULARIZATION OF TITLE 311 understand the solutions devised by communities who rely on informal property in their attempts to achieve the many aspects of human flourishing that a secure dwelling situated within a similarly secure community can provide. Occasionally we may then be able to improve on them. These are the benefits Bonilla Maldonado argues for in criticizing legal monism in favor of description and careful, focused prescription. In contrast, a one-size-fits-all account, such as that provided by de Soto, is hardly sufficient, and may often be counterproductive. The stakes here are large. For “[p]roperty theory determines how lawyers and policymakers think about urban issues and imagine solutions.” A systematic failure to examine critically the dominant individualistic approach to homeownership and homelessness will “foreclose serious consideration of alternative property arrangements.” As vague as they are, moradia, the right to the city, the social function of property, and a certain notion of cidadania help us to understand the concept of property in the home. To be sure, the Brazilian matrix within which regularizacao occurs has its own abstractions, exotic to an American ear not trained in them. But these abstractions do not function standing alone. As Ngai Pindell writes, “With its sometimes chaotic, sometimes ethereal overlay of formal, legal property rules atop the lived experiences of urban dwellers using, possessing, building, and speculating on land, Brazil’s property system presents the chance to see more clearly the underlying, universal tensions in property law.” Similarly, in the United States, an abstract account of the virtues and meaning of homeownership should not ignore concreteness and context, or it will mislead, with potentially serious consequences. A unitary theory is likely to miss the complexities of property ownership, especially homeownership. The unexamined discourse, by its very abstractness, masks political and social truths that would better be uncovered account for what Bonilla Maldonado calls the extra-legal in addition to the formally legal, and that this must be a local inquiry. 298. See Baron, supra note 19; Crawford, supra note 4; Iglesias, supra note 131; Waldron, supra note 164. 299. Bonilla Maldonado, supra note 233. 300. See DE SOTO [2000], supra note 32. 301. See sources cited in note 33. 302. Pindell, supra note 2, at 460.