7/31/2020
On July, Brazilian Government published twi provesional measures which brought a new form of guarantee for credit operations carried out with financial institutions, within the scope of the National Financial System.
The idea is to bring more dynamism and to contribute to the resumption of economic activity, seriously affected due to the strong impacts resulting from the coronavirus pandemic (COVID-19).
Called “fiduciary alienation share”, the measure allows the debtor to offer the same property to guarantee more than one credit operation, which until now in Brazil was not allowed.
This new modality presupposes the existence of a fiduciary alienation on the property offered as collateral, and is directed to new loans and financing that are made only with the same financial institution (fiduciary creditor).
With this regulation, new credit operations contracted within the scope of the fiduciary alienation may not have interest rates higher than the original transaction nor terms longer than the remaining term of the original credit transaction, on the contracting date, in order to provide favorable conditions for potential contractors
In addition, the financing or loan limit established for the original credit operation must be respected considering the total value of the guaranteed operations.
To be valid, the fiduciary share must meet certain requirements. Among them: (i) registration of the instrument for sharing the disposal in the registration of the property; and (ii) consent of the fiduciary creditor.
The main highlight refers to the forecast that if any installment is due without due payment. The fiduciary creditor may demand the entire debt of the credit operations contracted within the scope of the share of the fiduciary sale.
The new proposal seeks to foster real estate credit in the current economic scenario, considering that this type of credit operation usually offers lower interest rates and longer terms in the market. If approved by the National Congress, it may generate significant positive impacts for the credit market and the economic sector in the medium and long term.
Coauthors: Bruna de Sá Dinelli and André de Martini Menossi
