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Planning and environmental issues

Planning

Which government authorities regulate planning and zoning for real estate development and use in your jurisdiction and what is the extent of their powers?

Federal Law 10,257/2001 provides general guidelines for urban real estate development and zoning. Municipalities have powers to structure development and zoning plans for their respective territories and approve specific projects, observing state and federal regulations on matters such as the environment and land parcelling.

What are the eligibility, procedural and documentary requirements to obtain planning permission?

Eligibility, procedural and documentary requirements may vary greatly depending on the project. Among other requirements, a developer generally must submit:

  • documents relating to the ownership of the real estate;
  • evidence of payment of the application fees; and
  • technical documents relating to the project.

Can planning decisions be appealed? If so, what is the appeal procedure?

Planning decisions can be appealed:

  • at the administrative level, before an administrative body with powers to review the decision (which may vary from city to city); and
  • at the judicial level before the courts.

What are the consequences of failure to comply with planning decisions or regulations?

Penalties may include:

  • warnings;
  • fines;
  • the suspension of activities; and
  • the revocation of authorisation to develop the project.

What regime governs the protection and development of historic and cultural buildings?

The protection and development of historic and cultural buildings is enshrined in the Constitution and is regulated by federal, state and municipal authorities. Historic or cultural interest status may be granted at the initiative of the site’s owner or the government, through administrative proceedings in which the owner has a right of defence.

Government expropriation

What regime applies to government expropriation of real estate?

The government may expropriate real estate for public utility purposes or as a penalty for non-compliance with the property’s social function, mainly due to the property’s underuse. Expropriation occurs through a judicial proceeding, in which the owner has full rights of defence.

What is the required notice period for expropriation and how is compensation calculated?

Expropriation occurs only by way of a court decision in a judicial proceeding, in which the owner has full rights of defence. It can take months or years before possession is transferred to the government. Compensation is decided by the court, based on the property’s market value, which can be substantiated by an expert report. Dispute over the price may continue in the courts long after the owner loses possession of the property.

Environmental issues

What environmental certifications are required for the development of real estate and how are they obtained?

Generally, the main environmental licences required are:

  • a preliminary permit, issued on confirmation of the project’s social and environmental feasibility;
  • an installation permit, which authorises the developer to begin construction according to the project approved by the environmental agency; and
  • an operation permit, which authorises the developer to operate the building. 

Real estate projects that are deemed to pose no significant pollution risk, as determined by the competent environmental agency, are not subject to the operation permit and the relevant environmental assessment may be completed jointly with the incorporation work in such cases. Other environmental licences may be required, depending on the project’s features and location. For example, specific authorisations are required for:

  • catching water resources and wildlife;
  • deforestation; and
  • handling hazardous materials.

Permits can be issued by city, state or federal environmental agencies, depending on the type of project and whether its environmental impact is limited to the territory of a single city or will affect more than one city or state. The entrepreneur applying for the permit must provide the competent environmental agency with documents evidencing possession of the relevant real estate and environmental impact assessment studies, among other documents.

What environmental disclosure obligations apply to real estate sales?

The seller must disclose the information reasonably required by the buyer to assess possible liabilities in connection with environmental damages relating to the real estate (eg, as a result of soil or water contamination or the illegal destruction of native forests). For such purposes, the buyer can require the seller’s clearance certificates. In addition, the seller is subject to the general good conduct standards, such as good faith, as provided for in Federal Law 10,406/2002 (the Civil Code). Failure to comply may result in the buyer challenging the transaction in court.

What rules and procedures govern environmental clean-up of property? Which parties are responsible for clean-up and what is the extent of their liability?

Federal Law 6,938/1981 and Federal Law 12,651/2012 provide that the owner of real estate, its possessor and any person taking part in polluting activities are responsible for environmental damages that occur, on an objective, joint, several and unlimited basis and irrespective of wilful misconduct, fault or negligence. An owner that is found liable for environmental damages that it did not cause will have recourse against the actual polluter.

Are there any regulations or incentive schemes in place to promote energy efficiency and emissions reductions in buildings?

Regulations establishing energy efficiency labelling for public buildings exist. Buildings may benefit from renewable energy incentive schemes that involve the purchase of renewable energy and distributed energy.

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