The legal regime of wastelands (“Baldios”) has historically been constantly changing, characterized by the difficulty of characterizing its legal structure. From collective communal lands, to variants of private domain, the only constant that has been established since its beginnings was its collective domain. Its origin is in the necessity that the free settlers of a rural village, living from the family farm, had to dispose of vast uncultivated spaces, where they could find the complementary utilities of the agrarian activity.
The wastelands are land not individually appropriated, destined to serve as common street of the neighbours of a settlement or a group of settlements, proposed to the satisfaction of certain individual needs. They are administered by their respective communes in terms of customs and customs or through democratically elected bodies. Local communities organize and elect a joint assembly, a board of directors, and a supervisory board for acts of representation, disposal, management and oversight. In the event of an organizational vacuum, the Parish Council may exceptionally also be the administrator of the space in cases where the committees have not yet organized (transitory administration) or by proposing to the Management Body and democratically elected in a joint assembly.
The figure of the wastlands has always raised doubts as to the terms of their acquisition and transmission because of their unique nature. The possibility of acquiring, expropriating and / or leasing a wasteland, as well as its economic exploitation as a third, has been questioned since the Middle Ages, emphasizing in a notorious way during the first Portuguese codifications, varying the responses to these issues to a greater or lesser extent over time.
The evolution of the legal relationship of the barrios, motivated by the difference between them and the contemporary concept of public things, has undergone several distinct characterizations throughout its existence. In the period of the Seabra Code 1867, the estates were considered by the civilist doctrine of the time, as integrating the public property of the local authorities, being able to enter the private domain by disaffection, however, raising some voices contrary to this understanding, as that of Marcello Caetano and Rogério E. Soares.
The doctrine that the wastelands are special estates belonging to the municipalities only arose as a result of the Civil Code of 1966 to have ended with the tripartite distribution of things and give a single definition of “thing” – Article º202 of the Portuguese Civil Code – with the intention to make clear that things in the public domain cannot be the subject of private rights.
In the domain of the current Portuguese Civil Code, the legal category of common things was suppressed, so it was generally understood that such assets were susceptible of appropriation and acquisition by special adverse possession (“Usucapião”) (former acquisitional prescription), despite the existence of some discordant voices.
This until the entry into force of Decree-Law no. 39/76, of January 19, which, in its article 2, established:
“Uncultivated land is outside legal commerce and cannot be wholly or partly owned by any form or title, including acquisition by special adverse possession (“Usucapião”).”
This rule is in line with one of the fundamental principles of economic organization: the Community sector – Article 82 n. 4 (b) of the Constitution of the Portuguese Republic, which covers the means of production owned and managed by territorial communities without legal personality (“towns”, “villages”), being the most relevant but not unique case of “which presents itself as a specific figure, in which it is the community itself as a collectivity of persons, who owns the property, as well as its management, so that the State can not take possession under the terms in which the can do with respect to the private or cooperative sector “(G. Canotilho and Vital Moreira, Constitution of the Annotated Portuguese Republic, 3rd edition, revised, page 406).
In fact, in accordance with the text of the Basic Law at the time (art. 89 of the CRP / 76) and until today, the vacant lands are insusceptible to private appropriation. In addition, the current jurisprudence, in the face of constant legislative changes regarding Law no. 68/93, of September 4, has remained unchanged in the defense of the Baldios as “a specific figure, in which it is the community itself, as a collective of persons who owns the property, and of the productive unit, as well as of its management, within the framework of article 82, paragraph 4, b) of the CRP. ” (Supreme Court of Justice, Pº 00A342, Rapporteur, Counselor Pinto Monteiro).
Thus, between the publication of the Portuguese Civil Code of 66 until the Decree-Law identified above, we witness a period in which the figure of the Baldios, for lack of legislative regulation, presents itself as a common property, subject to private acquisition, including by acquisition by special adverse possession (“usucapião”) , with only that same prohibition at a later date. As stated in article 2 of Decree-Law no. 39/76, land is outside legal commerce and can not, in whole or in part, be privately appropriated by any form or title, including the acquisition by possession by a long period of time.
Accordingly, it is conforming that, in conjunction with the provisions of article 82 CRP, art. 1º nº1 of the Law of the Baldios (Law nº 68/93 of 4/9) defines the vacant lands as the lands owned or managed by the local communities, in Article 4, paragraph 1, to add that legal acts or businesses of appropriation or possession, for the purpose of vacant lands, as well as their subsequent transmission, are null and void, in the general terms of law, remaining inalienable by nature, which they have maintained since the publication of DL No. 39/76 and 40/76, both of January 19.
As is well known, according to Portuguese legal system, property rights are not extinguished by non-use and, for third parties to acquire them, they must demonstrate the exercise of possession with acquisitive intent and in its own name, requiring that it lasts for at least 20 years, publicly and peacefully, since only possession titled and considered in good faith sees this period reduced to 15 years.
Even if the abovementioned assumptions are fulfilled by the person who behaves like a real landlord, that acquisition of property does not operate in the general manner, from the moment of the nullity of the acquisition of possession. As a result of Article 4 (1) of Law no. 68/93, of 4 September, it is understood by the legislator’s intention, on the one hand, to safeguard the interests of the populations, mainly in the North and Central the importance that the wastelands still have for their survival and, on the other hand, for the sui generis figure which the wastelands are, either by their ownership (“being of all without being from nobody”) or by their central position and isolated in the prism of the Public and Private.
In view of the foregoing, doubts are not raised as to the nullity of the seizure and / or acquisition of the Property Right of Wasteland. It is, however, possible to recognize the acquisition of a waste by special adverse possession (“usucapião”) of this that the Author proves, in addition to the other requirements set forth in the Portuguese Civil Code for that purpose, that on the date of entry into force of said Decree-Law no. 39/76 of January 19 (01/24/76), the time needed to consolidate this form of acquisition of the property had already elapsed.