With the publication of Law No. 14,382 in 2022, which amended, among others, Law No. 6,015 of 1973, also known as the Public Records Law, the possibility of extrajudicial compulsory adjudication through real estate registry offices was established, without the need for judicial intervention.
The new law aims to streamline the registry and judicial service regarding public records and includes Article 216-B in the Public Records Law[1], which governs the procedure.
The law establishes that the following are authorized to request adjudication: (i) the prospective buyer of the property, (ii) the assignees of the property, (iii) the prospective assignees of the property, (iv) their eventual successors, and (v) the prospective seller.
In addition, the applicant must present the promise to purchase and sell (or, if applicable, the assignment or succession instrument), evidence of non-performance of the transfer obligation (i.e., the seller’s refusal to execute the transfer title), a notarial record identifying the property, judicial certificates proving the absence of disputes regarding the property, proof of payment of the ITBI, and a power of attorney with specific powers for the attorney.
Initially, the requirement to present a notarial record drawn up by a notary containing information about the property had been vetoed on the grounds that the requirement would increase costs and bureaucratize the procedure. However, the veto was withdrawn by the National Congress, as the notarial record is essential to ensure the authenticity of the documentation presented.
Furthermore, among the requirements, there is also a mandatory need for a lawyer to act in making the extrajudicial request for compulsory adjudication, even if through the real estate registry office.
Once the documents are presented and fees are paid, the real estate registry official will register the property in the name of the prospective buyer, using the promise to purchase and sell document as the title.
The extrajudicial procedure will facilitate the recognition that would take years to be achieved judicially. However, as this is a very new law, its practical application will still need to be refined and regulated by the National Council of Justice.
[1] 216-B. Without prejudice to the judicial route, the extrajudicial compulsory adjudication of a property that is the subject of a promise to sell or assign may be carried out at the real estate registry office where the property is located, in accordance with the terms of this article.
Co-authoria: Maria Luiza Duanetti and Frederico Augusto Bernardo de Oliveira.
