Loteamento fechado e as obrigações propter rem
This dissertation presents legal and social elements, with the purpose of delving into the theme of the obligation of the owner of a lot located in a gated community, who has the duty to participate in the sharing of common expenses for all. The issue raises debates, since there is no specific legis...
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| Tipo de recurso: | tesis de maestría |
| Estado: | Versión publicada |
| Fecha de publicación: | 2025 |
| País: | Brasil |
| Institución: | Pontifícia Universidade Católica de São Paulo (PUC-SP) |
| Repositorio: | Repositório Institucional da PUC_SP |
| Idioma: | portugués |
| OAI Identifier: | oai:repositorio.pucsp.br:handle/45286 |
| Acceso en línea: | https://repositorio.pucsp.br/jspui/handle/handle/45286 |
| Access Level: | acceso abierto |
| Palabra clave: | CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO Loteamento fechado Taxas de conservação e manutenção Obrigação propter rem Gated subdivision Conservation and maintenance fees Obligation propter rem |
| Sumario: | This dissertation presents legal and social elements, with the purpose of delving into the theme of the obligation of the owner of a lot located in a gated community, who has the duty to participate in the sharing of common expenses for all. The issue raises debates, since there is no specific legislation that addresses the matter. Throughout the research, with great attention, technical and legal arguments are presented on the legal nature of this obligation, based on doctrines and judgments, based on principles of obligatory law, on the propter rem obligations applied in the case at hand. The evolution of urban land subdivision in Brazil is explained, bringing up issues that are linked to the theme such as urban public policies, applicable legal instruments, such as Law 6.766/1979, the City Statute and municipal legislation. It is pointed out that gated communities arise as a response to deficiencies or omissions in the provision of services by the Public Authorities, for example, on security, maintenance of roads and common areas, quality basic sanitation, unblocking of roads, garbage collection etc. Gated communities are preserved and maintained by residents' associations or private administrators, who take on the provision of the services described here, among others. The study highlighted the importance of legal acts and transactions, private autonomy and good faith, fundamental elements in the relationship between land managers and landowners, as well as contracts signed between developers and purchasers, with emphasis on the standard contract registered in a notary's office, which generates obligations and binds not only the original purchasers, but also their successors. The conduct of the land owner and the tacit acceptance of the services provided were approached, indicating that the use of the services provided by land management companies, as well as the real estate appreciation for the property, generates, in itself, legal obligations, even if there is no formal adherence to these figures, in view of the principle of prohibition of unjust enrichment, which reinforces the legitimacy of charging conservation and maintenance fees, among other elements that generate the obligation to participate in the sharing of common expenses. We sought the position of the Higher Courts, which decided on the limits of freedom of association in return for the need to share expenses among all those who benefit from common services. It is concluded that, even though there is no specific legislation to date that deals with gated communities, it is legally legitimate and possible to demand a contribution from the owners of lots located in these developments to cover common expenses, given the real obligation of the binding nature of the standard contract, in order to guarantee legal certainty and balance in property relations in controlled access real estate developments, i.e., gated communities |
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