Supreme Federal Court rules on land acquisition by foreigners

The Supreme Federal Court (STF) has scheduled Thursday (September 11) for the trial of the Claim of Non-Compliance with a Fundamental Precept (ADPF) 342, which discusses the constitutionality of a crucial article of Law No. 5,709/1971 – a law that regulates the acquisition of rural properties by foreigners. The date is symbolic: it occurs days after September 7th, when Brazil's independence is celebrated.

Contrary to alarmist rhetoric, Law No. 5,709/1971 does not prohibit land acquisition by foreigners; it merely establishes limits and procedures for state oversight, as do several other countries. The disputed provision merely establishes that legal entities equivalent to foreigners require prior authorization to acquire rural properties.

The institutional unanimity in support of the law's validity is a solid legal fact. INCRA, the Attorney General's Office (AGU), the Federal Public Prosecutor's Office (MPF), and the Judiciary itself have repeatedly recognized the full incorporation of Law No. 5,709/1971 into the 1988 Federal Constitution.

Opinion LA-01/2010 of the AGU, approved by the President of the Republic, binds the entire federal public administration and reaffirms this acceptance. Since 2010, there has been no legal uncertainty regarding the application of the rule.

The argument of legal uncertainty is reversed: it would arise from the Judiciary's revocation of a legal provision, contrary to the express text of the Constitution, causing the entire system of Law No. 5.709/71 to collapse. Article 190 of the 1988 Constitution expressly allows for the acquisition of land by foreigners to be limited by ordinary law. And that law is the one from 1971.

Repealing a provision in effect for over five decades, enshrined in the Constitution and implemented by multiple government agencies, would undermine the legitimate trust of individuals in the stability of the legal system—especially foreigners who have complied with the law. Furthermore, the mere creation of a CNPJ (National Register of Legal Entities) would be sufficient to guarantee foreigners the unrestricted right to acquire land, without needing to observe the limits and requirements of current legislation.

If the STF declares the rule unconstitutional, alleging that it was not included in the 1988 Constitution, or proposes a decision with modulation of effects, in practice, it will make the legislation more flexible to reward operations carried out outside the law.

What is expected of the STF is that it reaffirms the constitutionality of Law No. 5,709/1971, and, with that, protects the public interest and food security, defending territorial management and national sovereignty.