A Função Social como Fato Limitador ao Direito de Propriedade

Abstract

This study aims to analyze the social function of property as a limiting factor for property rights in Brazil and Portugal. Since the concept of private property created in the beginning of time, it no longer reflects all the complexity of contemporary property law. The hypothesis consists in questioning the social function of property as a limiting factor or not of the exercise of the individuality of the right to property. The approach method used in the study is the deductive-hypothetical. For research purposes, the methodology was based on literature and bibliographic research, analyzing the doctrine, legislation and jurisprudence on the evolution of society in face of the idea of property and the individual’s right over it. In this context, basic concepts of property law, the social function of property were studied, and some specific characteristics of Brazilian law and Portuguese law that led to the understanding that the social function of property came to be seen as a norm that aims to regulate, in the best way, the exercise of the right of property, and not as a limiting norm in its origin. As a result, it was concluded that although there are specific characteristics between the legislations, the social function of the property seeks to be a regulating norm that, even maintaining the individual character, aims at the adequate use of the exercise of the right to property in order to reduce social inequality.