Property size does not always distort the family economy

The size of the property does not, in itself, distort the family savings regime for the purposes of granting special age retirement. This is the understanding of the Superior Court of Justice (STJ).

There was controversy in defining whether a rural worker with property greater than four rural modules could be considered a special Social Security insured after the enactment of Law 11.718/08, which amended art. 12, VII, Law 8.212/91 and art. 10, VII, Law 8.213/91. Previously, the legislation established the hiring of labor on a permanent basis as a factor in distinguishing a rural producer with special insurance from a rural producer who is not particularly insured.

As of Law 11.718/08, the status of special insured rural producer began to be linked to the size of the property. This law originated in Provisional Measure 410/2007. During the legislative process, provisions were added with the aim of bringing the concept of special insured person closer to that of family farmer, for the purposes of granting public policies (according to Law 11.326/06). Although the rural property size criterion is restrictive, this criterion established an objective rule in accordance with public policies aimed at family farming.

The fiscal module, as defined in article 4, II and III, Law 4.504/1964, is a unit of measurement expressed in hectares that indicates the minimum size of a rural property capable of guaranteeing the sustenance of a family carrying out rural activities in a given County. The size of the fiscal module is not linear throughout the country and is defined by Incra, in accordance with article 50, §2, Law 4.504/1964.

The number of tax modules of a property must be calculated only on the total usable area, considered as the area capable of agricultural, livestock or forestry exploitation, excluding areas occupied by improvements, forests or permanent preservation forests, or reforested with native essences , and the area proven to be unusable for any agricultural, livestock or forestry exploration.

However, the jurisprudence of the STJ has allowed that properties with an area greater than four fiscal modules do not distort the rural worker's special insured status. Its size is just another factor to be analyzed along with the rest of the evidentiary set. Even after the legislative change, the understanding remained. And it ended up being a binding precedent (Theme 1115).

See excerpt from the trial summary:

[...] SPECIAL INSURANCE. RECOGNITION OF TIME WORKED IN AGRICULTURE. FAMILY ECONOMY REGIME. RURAL RETIREMENT BY AGE. PROOF OF RURAL LABOR. IMPLEMENTATION OF LEGAL REQUIREMENTS. THE SIZE OF THE RURAL PROPERTY DOES NOT DISCHARACTERIZE, BY ITSELF, THE FAMILY ECONOMY REGIME. [...]

4. Rural workers, upon reaching 60 years of age, if male, or 55, if female (Federal Constitution, art. 201, §7°, item II; Law no. 8.213/91, art. 48, §1° ), the granting of retirement based on age is guaranteed, in the amount of one minimum wage, as long as they prove the effective exercise of rural activity, even if discontinuously, in the period immediately preceding the application, equal to the number of months corresponding to the grace period of the benefit (articles 39, item I, and 48, §2°, both of the Benefits Law).

5. The criterion - the size of the rural property - was included by Law 11.718/2008, which drastically reformulated the concept of special insured. [...].

6. Regarding the mischaracterization of work in a family economy regime due to the extent of rural property exceeding the legal limit of 4 fiscal modules, this Superior Court of Justice has long since established guidance to the effect that one cannot simply analyze the extent of rural property, but rather evaluate the condition of the special insured as a whole, considering the context of the specific case, if the other requirements necessary for its configuration are met. [...] (REsp 1.947.404/RS, rapporteur Minister Benedito Gonçalves, First Section, judged on 23/11/2022)