PARA CIMA VALE, PARA O LADO NÃO?

A SELETIVIDADE VERTICAL DO DIREITO DE LAJE E A INVISIBILIDADE JURÍDICA DA MORADIA HORIZONTAL NAS PERIFERIAS URBANAS

Abstract

This article examines the normative omission in Brazilian legislation that restricts the real right to build on slab, established by Law No. 13.465/2017 and Articles 1.510-A to 1.510-E of the Civil Code, to vertically stacked constructions. This legal design disregards widespread horizontal housing arrangements—such as extensions built at the back or sides of family plots—in popular urban territories. The hypothesis is that this selective recognition reflects not only technical limitations but a property regime shaped by registry formalism and market-driven urban governance. The study aims to investigate the legal and social implications of such exclusion, under the framework of the 1988 Constitution, especially the principles of the social function of property, the right to housing, and the right to the city. Methodologically, it adopts a qualitative and critical-hermeneutic approach, combining civil law analysis with jurisprudential review—particularly of ADPF 828—and interdisciplinary theory. Drawing on authors such as Lefebvre, Rolnik, Fraser, Bourdieu, Boaventura and Alexy, the article argues that the vertical bias in the legal treatment of housing reflects a symbolic production of legal invisibility. The findings suggest that constitutional interpretation aligned with urban justice, combined with legislative reform, could enable formal recognition of horizontal housing as a legitimate form of tenure and territorial belonging.