The Role of the Judiciary in Cases of Municipal Omission in REURB

Urban Land Regularization (REURB), established by Law No. 13.465/2017, is an urban policy instrument aimed at integrating informal urban settlements into the formal legal framework.

Although the procedure is, as a rule, an administrative and municipal responsibility, government inaction cannot prevent the enforcement of fundamental rights such as housing, safety, and the social function of property.

In cases of municipal inertia or resistance, it is the role of the Judiciary to intervene to ensure the implementation of REURB, filling administrative gaps and ordering regularization measures.

1. Municipal Competence and Its Binding Nature

1.1 The Municipality’s duty

According to the Federal Constitution (Art. 182), Municipalities are responsible for implementing urban development policies, ensuring the full exercise of the city’s social function.

Law No. 13.465/2017 reinforces this duty by expressly assigning to the Municipality the power to initiate and conduct REURB.

1.2 Unconstitutional omission

Municipal omission in implementing REURB is not merely an administrative failure, but a violation of constitutional and legal duties. It constitutes an unconstitutional omission, subject to judicial control.

2. Judicial Remedies Available

2.1 Standing to sue

Residents, neighborhood associations, condominiums, or even the Public Prosecutor’s Office (Ministério Público) may seek judicial intervention to demand the initiation of REURB.

2.2 Procedural instruments

·         Action to compel performance (ação de obrigação de fazer): requesting initiation of REURB;

·         Collective writ of injunction (mandado de injunção coletivo): in cases of normative omission by the Municipality;

·         Public civil action (ação civil pública): where diffuse, collective, or homogeneous individual rights are at stake;

·         Injunctive relief (tutela de urgência): for emergency safety measures (e.g., fire department inspections).

3. Constitutional Basis for Judicial Action

·         Art. 5, XXXV, Federal Constitution: no injury or threat to a right may be excluded from judicial review;

·         Art. 6, CF: social right to housing;

·         Art. 182, CF: municipal duty to ensure the social function of the city;

·         Art. 225, CF: right to an ecologically balanced environment.

Thus, the Judiciary does not replace the public administrator but ensures compliance with duties already mandated by law.

4. Case Law and Judicial Trends

The STJ (Superior Court of Justice) and State Courts have recognized the legitimacy of judicial intervention in cases of administrative omission that compromise fundamental rights.

Examples include rulings obliging municipalities to provide public housing, regularize old subdivisions, or implement minimum infrastructure in occupied areas.

In the context of REURB, the trend is for courts to fill municipal omissions, especially where occupation was consolidated before the cut-off date of 12/22/2016.

5. Practical Cases: Buildings and Informal Settlements

·         Building in an upscale area (e.g., Alphaville): if the Municipality refuses to initiate REURB-E, residents may file suit to compel the procedure and request emergency inspections by the Fire Department.

·         Low-income community in a peripheral area: if the Municipality fails to act, associations may judicially request initiation of REURB-S, ensuring residents’ titling rights.

6. Risks of Municipal Inertia

Administrative omission perpetuates situations of:

·         Legal uncertainty: residents without deeds or individual registrations;

·         Risk to life: buildings without fire safety inspections (AVCB) or minimum safety conditions;

·         Real estate devaluation: irregular properties without access to financing or insurance;

·         Excessive litigation: residents forced to seek individual remedies instead of collective solutions through

REURB.

Conclusion

REURB is a constitutional and legal duty imposed on Municipalities, but its effectiveness cannot depend solely on local political will. In cases of administrative inertia or refusal, the Judiciary has legitimacy to intervene, ordering initiation of the procedure, emergency safety measures, and ultimately the formal regularization of properties.

Thus, judicial intervention does not represent an invasion of municipal competence, but the exercise of the constitutional duty to safeguard fundamental rights, particularly the right to housing, safety, and the social function of property.