A FUNÇÃO SOCIAL DO DIREITO DE SUPERFÍCIE - Fadisp

ABSTRACT
The object of this study, ie, the surface rights has its origin in the Roman Empire.
It appears that its applicability was guided initially in public law as an instrument of
expansion of the empire and later came to be applied under private law whose aim is to
keep those state lands conquered.
Approved by the Brazilian legal system, initially by the City Statute and
subsequently by the Civil Code of 2002, contains strong Portuguese influence, ie,
returns with the objective of meeting a "gap" opened by the new social profile, economic
and political right to property.
On this track, the surface rights, being a right real estate complex in nature, unlike
any other real right, considering its peculiar, and in particular its strong transmissibility.
Thus, the surface rights, or the concession holder surface, holds a real right which
it may build or plant and maintain the building or planting, with its economic value, in
order that it can be marketed or taped lien, in accessory character and temporal.
This hypothesis, as shown, to be carved in native legal system reflects
unmistakably the care of the social function of property, as provided in the Constitution
promulgated in 1988, as in several other laws, however especially in the Civil Code
2002.
Its applicability, at least initially, is challenging. Well, this is an institute recently
introduced in the native legal system worthy of reforms, which have also been criticized
as to its applicability in the past and finally, the object of an apparent conflict of
standards in the legal system.
Such findings deserve to be analyzed, verified and studied since, as only thus,
can be verified that based on current existing legal instruments, the right surface is able
to meet a clear and just-the constitutional principle of the social function of property.
Keywords: Surface Rights. Property. Principle of Sociality. Social Function of Property.