O Que É Desafetação? (Com Exemplos)

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Última Atualização 17 de maio de 2022

QUESTÃO CERTA: A desafetação é ato por meio do qual o Estado, mediante lei, altera o regime jurídico aplicável aos bens públicos de uso comum do povo ou de uso especial, transmutando-os em bens dominicais.

QUESTÃO CERTA: Imóvel de propriedade da administração pública utilizado como centro administrativo pode ser alienado após a devida desafetação e mediante autorização Legislativa.

QUESTÃO ERRADA: Situação hipotética: A União decidiu construir um novo prédio para a Procuradoria-Regional da União da 2.ª Região para receber os novos advogados da União. No entanto, foi constatado que a única área disponível, no centro do Rio de Janeiro, para a realização da referida obra estava ocupada por uma praça pública. Assertiva: Nessa situação, não há possibilidade de desafetação da área disponível por se tratar de um bem de uso comum do povo, razão por que a administração deverá procurar por um bem dominical.

Na transformação de um BEM DE USO COMUM em um BEM DE USO ESPECIAL ocorre desafateção? 

Reposta: SIM.

Quanto aos bens públicos o CC/02 estabeleceu uma ordem decrescente, nesta ordem: uso comum, uso especial, dominical.

Nisso, a melhor doutrina diz:

Uso comum – MAIS AFETAÇÃO

Uso especial – AFETAÇÃO MÉDIA

Dominical – SEM AFETAÇÃO

Então, se houve transformação de uma praça (uso comum) para um prédio público (uso especial), o bem “perdeu afetação” (de “mais afetação” para “afetação média”). 

Essa “perda de afetação” (de “mais afetação” para “afetação média”) a doutrina entende que é DESAFETAÇÃO

É possível a desafetação de bens de uso comum do povo, desde que não tenham sido naturalmente afetados (ex.: rios, praias, lagos)

A afetação e a desafetação podem ocorrer de diferentes formas, especialmente em decorrência da:

– Edição de uma lei: por exemplo, lei que converta terra devoluta (bem dominical) em terreno de preservação ambiental (bem de uso especial);

– Prática de um ato administrativo: por exemplo, decreto do Prefeito que determina a instalação, em prédio desativado (bem dominical), de creche municipal (bem de uso especial);

– Ocorrência de um fato administrativo: por exemplo, incêndio que destrua uma escola pública (bem de uso especial), inutilizando completamente o imóvel (bem dominical); ou a realização de obras públicas, como a construção de um prédio público (bem de uso especial) em um terreno público desocupado (bem dominical).

>> Bens de uso comum e uso especial para dominicais DESAFETAÇÃO.

>> Bens dominicais para bens de uso comum ou especial AFETAÇÃO.

>> Bens de uso especial e dominicais para bens de uso comum AFETAÇÃO.

>> Bens de uso comum para dominicais ou de uso especial DESAFETAÇÃO.

QUESTÃO ERRADA:  os bens públicos de uso comum do povo são considerados bens inalienáveis, por isso não podem ser desafetados, ao passo que os bens públicos de uso especial somente podem ser alienados se forem desafetados.

QUESTÃO ERRADA: Bens imóveis são, por regra, inalienáveis, salvo declarada desafetação, que prescindirá de lei autorizativa quando se tratar de imóvel afetado à Administração Indireta, incluídas nesse conceito as autarquias e fundações.

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Não prescinde de lei a desafetação de bens imóveis públicos.

Lembrando que a doutrina moderna admite a desafetação e afetação que não decorrem de lei. Exemplos: um prédio que contém uma escola, por conta de fortes chuvas vem a desabar em deslizamento de terra. O imóvel neste caso não mais é afetado ao serviço público, tendo se operado uma desafetação tácita.

Pode ocorrer também a afetação tácita, como a formação de uma ilha decorrente de sedimentos num bem de uso comum do povo. Essa nova ilha sofrerá afetação tática se tornando um bem de uso comum do povo.

Fonte: Direito Administrativo Esquematizado, Ricardo Alexandre.

IBADE (2020);

QUESTÃO CERTA: Determinado prédio, sede da Receita Federal, em certo município de Roraima, por força de um curto-circuito, acaba por ficar totalmente destruído. Diante da inviabilidade de sua construção, o Governo Federal decide alienar o citado imóvel. Face ao fato imaginário narrado, assinale a alternativa correta: Tacitamente, ocorreu a desafetação e podem ser objeto de alienação, desde que ressaltados os requisitos legalmente definidos na lei

A Desafetação pode ser expressa ou tácita.

Tácita é a que resulta da atuação direta da Administração, sem a manifestação explícita de sua vontade, ou, ainda, de fato da natureza. A maior parte da doutrina admite desafetação tácita decorrente de fato, como, por exemplo, de um incêndio que destrói obras de um museu, pois, conforme enfatiza Di Pietro, seria excessivo formalismo exigir que haja um ato formal de desafetação neste caso (cf. DI PIETRO, Maria Sylvia Zanella. Direito administrativo. São Paulo: Atlas, 2010. p. 677).

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    in fact ordered me lunch due to the fact that I
    found it for him… lol. So allow me to reword this….
    Thank YOU for the meal!! But yeah, thanx for spending some
    time to talk about this matter here on your web page.