Law 13.465/2017, which initially dealt with rural and urban land tenure regularization, as well as the disposal of properties of the Federal Union, received a series of additions of subjects and ended up also regulating several issues with a direct impact on the day-to-day of the real estate market.
The full text of the law is available here. Aloísio Santini, of TCSA, highlighted the following topics on the company’s website:
Condominium of lots – This concept has been debated for more than 15 years by the Legislative Branch and, with the insertion of article 1.358-A into the Civil Code, establishing that on plots of land there may be designated parts of lots that are the exclusive property and parts that are the common property of the co-owners, a solution appears to have been found with the creation of this new form of urban land subdivision. In the case of a real estate development whose object is a condominium of lots, the implementation of all the infrastructure will be the responsibility of the developer.
Subdivision with access control – The matter of access control in subdivisions, popularly known as gated subdivisions, was also addressed by Law 13.465/17, with an amendment inserted into the Urban Land Subdivision Law, Law 6.766/79, conferring this regulation upon the municipal public authority, while however prohibiting the impediment of access to pedestrians or vehicle drivers who are not residents of these subdivisions, provided they are duly identified or registered.
Fiduciary alienation of real property as security – The major innovation came from the possibility of, up until the date of the annotation of the consolidation of fiduciary ownership, ensuring to the fiduciary debtor the right to pay the overdue installments of the debt and other expenses, in which case the fiduciary alienation contract will be cured. Such a benefit had already been repeatedly granted to debtors by force of judicial decisions.
Extrajudicial adverse possession – As occurs in the procedures for the rectification of real estate registrations carried out extrajudicially before the Real Estate Registry Officers, the silence of the party comes to be interpreted as agreement with the intended adverse possession. Such a change represents a great advance for this modality of property acquisition to come to be used more, also contributing to the dejudicialization of demands.
Exemption of the seller’s tax liability – The Public Registries Law, No. 6.015/73, was amended, making it possible to annotate on the property’s registration the discharge term of a preliminary agreement for purchase and sale, provided it is duly registered in that same real estate registration. The annotation has the specific purpose of exempting the seller from liability for municipal taxes levied on the property before the municipality (chiefly IPTU and ITBI). This annotation of the discharge term will not entail the transfer of ownership to the prospective purchaser.
Real right of overlay (laje) – this is a new real right, comprising a quite useful mechanism for the land tenure regularization of favelas. In general terms, the real right of overlay allows an autonomous real estate unit to be instituted for constructions in the air space or in the subsoil of public or private land, provided that these constructions have exclusive access to the public thoroughfare, this new concept not being confused with situations of condominium.
You can also read more about this subject on the website of Ricardo Trevisan, architect and urban planner, author of books on the real estate sector. To access it, click here.
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