Overthrow of veto allows transfer of property titles via notary

The overthrow by the National Congress of the presidential veto to Article 11 of Federal Law No. 14,382, which took place on Christmas Eve last year, allowed the Compulsory Property Adjudication procedure to be carried out directly at a notary’s office, throughout the country, with as an initial document, the elaboration of a Notarial Minute, made by a notary public. The compulsory adjudication action can only occur when there is a promise to buy and sell the property and one of the parties makes it difficult or impossible to transfer the property.

Carrying it out in a notary, from now on, has the advantage that the procedure, which was previously done exclusively through the courts and took up to five years to complete, can be carried out extrajudicially, in an average time of up to three months, depending on the case, and more cheaply, by means of a Notarial Minute at the Notary’s Office.

The vice-president of the Colégio Notarial do Brazil, Rio de Janeiro section (CNB/RJ), Edyanne Frota Cordeiro, confirmed that in order to ease the Judiciary and be quicker for the user, it was possible for the procedure to be carried out through the notaries of grades. This situation always happens when the person has already paid for the property and does not manage to have the title of ownership, that is, he cannot dispose of the property completely, either to rent, sell, or give as collateral.

“The person has to start with the notary office, making a Notarial Minute. This is a document where the person will prove that the other party owes the title to the property, which can be the promissory seller, that is, the person who promised to sell, or the promissory assignor, which involves the so-called drawer contracts”, he informed Edyanne, in an interview with Brazil Agency. Drawer contract is the informal document for the purchase and sale of real estate, without registration in a real estate notary and without external interference from banking or real estate institutions.

Evidences

The CNB/RJ vice-president explained that the person will have to prove to the notary, through documents such as bank statements, copy of checks, and by the most diverse legal means, that he paid and, also, that he tried everything to receive the property of the person who promised to pass on the asset when he received the price and did not do so, as well as its executor, if the asset was in the estate. Several reasons can explain why this did not happen: the person was absent, he is in an uncertain and unknown location, he has already died, because he does not want to, indicated the vice president. “Sometimes, it can be a construction company that went bankrupt or ended, or that its representatives are refusing to comply with the agreement previously signed”.

According to him, “the important thing is that everything has already been paid and the person has not received the definitive deed, that is, the title deed to register with the real estate registry office”. It may also happen that the person paid off the property, but did not pay the Property Transfer Tax (ITBI), which must be paid when a property is acquired. .

It is up to the notary office to provide all the legal preparation to the interested person, that is, to prepare the document, gather the evidence that the person paid the established price. Then, the clerk of the notary puts everything in a notarial act. Afterwards, the minutes go to the competent property registry, which must be from the area where the property in question is located. It cannot be done in another municipality, said the vice president. If everything is in order, the deed can be done in a week.

The interested party will pay for the document in the notary’s office, whose value will depend on the price of the property. The record should have similar value. In the evaluation of Edyanne Frota Cordeiro, the measure could relieve thousands of actions that are being processed in the Judiciary, contribute to the effective land regularization and solve the lives of many Brazilians who wait up to five years for the outcome of cases involving the transmission of properties already paid off. , but the seller refuses or is prevented from transferring the property to the buyer.

Conquest

In the opinion of the president of the CNB/RJ, José Renato Villarnovo, “carrying out a compulsory adjudication in the Notary’s Office is yet another great achievement of the Colégio Notarial do Brazil and the Corregedoria Geral de Justiça do Rio de Janeiro. Many cities, especially those in the interior of the state, face problems with properties that have been irregular for years, for various reasons. The extrajudicial procedure becomes less costly than a lawsuit and relieves the Judiciary. It is an option for the population of Rio de Janeiro to use the speed and security of Notary Public Offices to resolve the regularization of thousands of urban and rural properties”.

The Notarial Minutes must contain the identification of the property, the name and qualification of the buyer or his successors contained in the promissory contract, proof of payment and characterization of the default of the obligation to grant or receive the title of property. “Because the property title is yours (the person who paid for the property). It’s just a matter of formality. You’ve already paid everything, you don’t owe anything. It’s like going there to summon that title for you; take what is yours,” said Edyanne.

In addition to guaranteeing the authenticity of the documents, the notarial act may attest to the availability or unavailability of the asset and the discharge of the legal transaction, upon presentation to the notary public of various documents, such as income tax returns, e-mails and text between dealers that prove receipt by the seller, in addition to bank statements and other facts that are not demonstrated by documents. The messages exchanged between the contracting parties can prove the attempts made to obtain the definitive deed, evidencing difficulty or impossibility and being the real proof of the seller’s refusal to grant the definitive deed.

The vice-president of CNB/RJ highlighted that if there is already a Compulsory Adjudication procedure in progress in the Judiciary, the user must approve the withdrawal request, through his lawyer or public defender, so that the act can take place through extrajudicial means. .

Translated to english by RJ983

From Brazil, by EBC News

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