Glauber Ortolan, partner at Lassori Advogados. Article published in Valor Economico
Amid the pressure for credit and renegotiations, rural producers place their principal asset in fiduciary alienation contracts – often without knowing all the legal consequences.
Land, in agribusiness, is more than an asset. It is an instrument of production, a store of value, and a family inheritance. Even so, in the face of failed harvests, price fluctuations, and rising costs, there is a growing number of producers who offer their properties as collateral in fiduciary alienation contracts in order to obtain credit or renegotiate debts.
What many do not realize is that this type of collateral, although common in the urban real estate market, takes on especially delicate contours in the rural environment.
Recent data from Serasa Experian indicate the magnitude of the financial pressure in the sector: 1,990 requests for judicial reorganization were recorded in agribusiness in the past year, a rise of 56.4% compared to 2024 – the highest number since the monitoring began, in 2021.
The fiduciary alienation of real property is governed by Law 9,514/1997. In this contractual structure, the producer transfers to the creditor the resoluble ownership of the property as collateral for the debt. He remains in direct possession of the land – he continues planting, harvesting, and exploiting the activity – but legal title passes to the bank until the full settlement of the debt.
The difference may seem merely formal, but the effects are profound.
Unlike the mortgage, which depends on judicial proceedings for the expropriation of the asset, fiduciary alienation allows enforcement that is predominantly extrajudicial. In the event of default, the creditor may promote the consolidation of ownership in his own name after compliance with the legal formalities, including by means of a procedure at the real estate registry office.
The period for the producer to cure the default – that is, to settle the overdue debt – is short. If there is no full payment within the legal period, the consolidation becomes definitive, opening the way to the auction of the property.
In practice, this means that the loss of the land may occur in a significantly shorter time than that of a traditional judicial enforcement, reducing the margin for negotiation and financial reorganization.
Another critical point is that credits secured by fiduciary alienation have differentiated treatment in any eventual judicial reorganization. As a rule, the fiduciary creditor is not fully subject to the effects of the reorganization, and may exercise the right over the collateral outside the plan approved by the other creditors. Case law, however, has been relativizing this prerogative in situations involving assets essential to the productive activity.
For the producer who sees in judicial reorganization an alternative for restructuring, fiduciary alienation may empty the effectiveness of the instrument by compromising precisely the principal asset of the rural activity.
Not always, however, is judicial reorganization the first or best path. In many cases, measures such as the revision or extension of rural credit – provided for in Law 4,829/65 and in the Rural Credit Manual – prove more appropriate for specific difficulties arising from climatic, productive, or market factors. While judicial reorganization acts as an instrument for the global restructuring of liabilities and suspends enforcement actions, the extension operates as a specific contractual adjustment, aimed at recomposing financial flow and preserving the activity without the costs and exposure typical of judicial reorganization proceedings.
Beyond the legal aspect, there is the economic risk. Many fiduciary contracts arise in renegotiations with high rates. If the operating profit of the activity is lower than the agreed interest rate, the debt tends to grow structurally.
In recent renegotiation operations, it is not uncommon to observe financial costs that may exceed 20% per year, especially when combined with indexes such as the CDI. In such cases, the sustainability of the debt depends directly on productive performance and price stability – variables that are beyond the producer’s control.
In this scenario, offering the land as collateral does not solve the underlying problem – it merely adds a patrimonial risk to the equation. Default ceases to be merely financial and comes to threaten the very continuity of production.
Before opting for the fiduciary alienation of the principal property, it is recommended to assess an administrative renegotiation with revision of rates and terms; the use of less burdensome collateral, such as a pledge of the harvest or of machinery; the strategic sale of non-essential assets to reduce liabilities; and an eventual preventive judicial restructuring, where applicable.
Each case requires individualized analysis, but the rule is clear: the decision must be technical, not emotional or hasty.
In the urban environment, one property may be replaced by another. In the countryside, the land concentrates production, logistics, structure, and family identity. To lose it does not represent merely the enforcement of a collateral – it often means the closure of the rural activity.
In times of economic volatility and tight margins, fiduciary alienation may seem a quick solution. However, when poorly calibrated, it turns into a swift mechanism of patrimonial loss.
In agribusiness, where the productive cycle depends on planning and a long-term vision, the decision to offer the land as fiduciary collateral must be made on the basis of numbers, specialized advice, and full comprehension of the risks – once ownership has been consolidated in the creditor’s name, the time for regrets will already have passed.
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