Vacant goods in Colombia and Brazil. A comparative study on the right to property

Abstract

This essay aims to make a comparison between Colombia and Brazil on the vacant goods and the right to property. As we will develop throughout this text, there is no one-to-one definition in Colombia of the vacant good, which has generated high legal uncertainty through scattered  pronouncements of the case law of the high courts. In Brazil, the equivalent refers to terra devoluta as imprescriptible and inalienable, and although it does not exist a register, private ownership is presumed to be the owner under the 2002 Civil Code. In this sense, individuals can acquire by prescription the land they own as the property will not be considered as vacant, but as subject to ownership. In Colombia, equitable access to land by agrarian workers in the terms of article 64 of the Constitution has a relative interpretation, to because economically exploited rural assets without a precedent registry as uncultivated is unable to be presumed as private property. With this, the fundamental right to due process is being affected by the judge. This jurisprudential interpretation generates a great legal vacuum, undermining the principles of legal security and protection to legitimate expectations of the rule of law.