Right of Superficies:

civil law tradition and future perspectives

Abstract

The present study examines the Right of Superficies as an instrument for enforcing the social and environmental function of property within the contemporary Brazilian constitutional framework. Using a deductive, comparative, and empirical approach, it explores the historical evolution of the institute, its consolidation under the dual legal regime formed by the City Statute (Law No. 10.257/2001) and the Civil Code of 2002, and its practical application in Brazil and foreign jurisdictions. The findings indicate that, despite its potential to promote rational land use, social housing, and urban sustainability (SDGs 7 and 11), the institute remains underused due to structural barriers such as bureaucratic registration, lack of public policies, and scarce jurisprudence. Empirical evidence based on registration costs, municipal programs, and international experiences shows that the Right of Superficies is hindered by institutional and cultural factors favoring full ownership. The study concludes that its full consolidation requires technical dissemination, procedural simplification, and systematic integration into public housing, urban renewal, and energy transition policies, reaffirming the institute as a link between civil law tradition, land governance, and socio-environmental sustainability.