A desobrigação da averbação da reserva legal no registro de imóveis pelo código florestal : análise de sua conformidade com os princípios do direito ambiental brasileiro

Abstract

This dissertation analyzes the compliance of Paragraph 4 of Article 18 of the current Forest Code (Law No. 12,651/2012) with environmental principles, specifically insofar as it waived the requirement to register the Legal Reserve with the Real Estate Registry upon registration of the property in the Rural Environmental Registry. It addresses the legal evolution of the Legal Reserve in Brazilian environmental law, covering its legal concept, characteristics, boundaries, and, in particular, its legal nature in terms of its obligatory aspects'as a propter rem obligation'its administrative aspects'as a limitation on the right to property'and its constitutional aspects"as a fundamental right and duty to protect the environment. The paper discusses the close connection between the Legal Reserve and the principle of sustainable development, with this principle serving as the foundation for its entire management regime, aimed at the rational use of its natural resources. It demonstrates that the Legal Reserve represents the minimum necessary for real estate to fulfill its socio-environmental function, manifesting itself as the practical expression of this principle. With regard to the Real Estate Registry, it is shown that the registration of real property provides publicity with legal certainty, insofar as the real estate information contained therein is subject to prior review for legality before being entered into the registry, due to the qualifying function of the registrar. This paper advocates for the Real Estate Registry as a tool to enhance access to real estate information, demonstrating its role in reporting legal situations of an environmental nature that have implications for real estate property. It is demonstrated that this perspective is consistent with environmental and registry principles, as well as with legal rules and extrajudicial regulations, in addition to specific case law from the Superior Court of Justice. The need to register the Legal Reserve in the Real Estate Registry is justified, especially given the lack of technical and legal qualification of the environmental information produced by the Rural Environmental Registry. It is found that Article 18, paragraph 4, of Law No. 12,651/2012 is compatible with Article 167, II, 22, of Law No. 6,015/1973, failing which would constitute a violation of the environmental principles of sustainable development, the socio-environmental function of property, the prevention of environmental degradation, a high level of ecological protection, and the maximum effectiveness of environmental protection. It is suggested that legislation be amended to maintain the requirement to register the Legal Reserve in the Real Estate Registry as a condition for making any other entry on the property title. It is concluded that the Rural Environmental Registry and the Real Estate Registry can coexist harmoniously as complementary tools in support of environmental protection. [resumo fornecido pelo autor]