Brazil: Corporate Real Estate: A Q&A Guide To Corporate Real Estate Law In Brazil

By Christiane Scabell Höhn and Cristiana Moreira

The corporate real estate market

1. What have been the main trends in the real estate market in your jurisdiction over the last 12 months? What have been the most significant deals?

The real estate market in Brazil is flourishing. The combination of low inflation, appreciation of the Brazilian currency, interest reduction and creation of modern investment funding mechanisms has made the real estate market extremely attractive to investors.

Several important real estate companies have gone public and there are significant funds available for investment in real estate.

However, the country still lacks a well-defined housing policy and programmes.

There are several ways to invest in real estate, directly or through a property company.

There are some other mechanisms to invest in the real estate market, such as securitisation of credits related to real estate receivables (Certificado de Recebíveis Imobiliários and Cédulas de Créditos Imobiliários), and a Real Estate Investment Fund (Fundo de Investimento Imobiliário), which is similar to the American REIT.

Both institutional and private investors have an important role, since they provide the necessary resources to stimulate the real estate market.

The main sources of real estate law are:

• The Brazilian Civil Code.
• Public Register Law (Law 6015/73 Law 6015/73).
• Lease Law (Law 8245/91).
• Other specific statutes.

The Public Register Law established a public register system of title to real estate, which is based on Real Estate Registrars. In the first transaction regarding a property made after 1973, the real estate is given a title number (matrícula). Under such number, the Real Estate Registrar records the details of the owner, a description of the property and all third party rights to which it is subject, which require registration. These may include any legal mortgage or charge, or any other real estate lien in connection with the property.

Good title can be evidenced by a recent certificate of the title number of the property, issued by the competent Real Estate Registrar, covering the property and all transactions made over the last 20 years regarding the property. A flaw in any such transaction can result in its cancellation, which would also cancel all subsequent transactions.

Therefore, it is very important to review and make sure that:

• Each transfer of the property during the last 20 years was properly made by the persons who actually owned the property.
• The parties were correctly represented, had the power to transfer and convey property, and were authorised to do so.
• The transfer does not violate the law or third parties' rights.

To check the title of a property, it is necessary to search the corresponding title, which should cover at least a 20-year period. A certificate of title will normally evidence the ownership and whether or not there is any kind of lien.

Investigation of title, however, would normally go beyond the mere review of a Real Estate Registrar certificate, and would also include analysis of the acquisition deed and certificates related to the owner and the property.

Non-registered titles, claims, rights or liens are not enforceable against third parties, but can be enforced against those who took part in the transaction. Therefore, although the rights to the real property derive from a deed, the ownership of such property is only transferred to the buyer and becomes valid against third parties after the registration of the deed by the Real Estate Registrar under its title number.

• Is there a state guarantee of title?
• What categories of documents and information are registered?
• Can confidential information or documents be protected from disclosure?
• State guarantee. There is no state guarantee of title.
• Categories of documents and information. The title is recorded with details of the previous owners as of 1973, a description of the property and its boundaries, and all third party rights (requiring registration) to which it is subject. In addition, a variety of other acts may require registration or annotation, such as a change in name of the owner or a change in marital status.
• Confidential information or documents. The registered title becomes a public document and accessible for any person. For this reason, it is not possible to protect confidential information from disclosure in this case.

Title insurance is not available in Brazil. It is important to note, however, that some foreign insurance companies do insure titles in Brazil.

Tenure in real estate is usually freehold. The ownership is absolute and in perpetuity until the disposal of the asset by the owner, who is free to enjoy it and dispose of it, subject only to third party rights and applicable legal restrictions. On the owner's death, ownership transfers to the owner's heirs.

There are, however, several other types of tenure to real estate, such as:

• Usufruct (the right to use and enjoy something belonging to another).
• Fiduciary property.
• Resolvable property.
• Security sale agreement (alienação fiduciária).
• Purchase and sale commitment.
• Real right of use.
• Rights over superficial property.
• Trust (fideicomisso).

There are also properties subject to emphyteusis (seisin) and others that are subject to a special coastal land system.

The concept of tenure as understood by countries of Anglo-Saxon origin does not exist under the Brazilian legal system. Exclusive possession and rights to use land and buildings can be obtained principally through:

• Freehold ownership.
• Usufruct.
• Lease.
• Commodatum (a type of gratuitous lease).
• Real right of use, which is the right to use the property to meet the needs of the holder of the right and his family.

Property by the seashore is subject to a special coastal system.

• Negotiation and execution of a sale contract.
• When the parties are legally bound.
• Registration.
• When title transfers.
• The length of the process.
• Marketing. Real estate can be marketed by real estate brokerage firms or in newspaper advertisements. The internet is also a useful source.
• Commercial negotiation. Commercial negotiation is usually mediated by a real estate broker or by lawyers.
• Pre-contractual arrangements. Pre-contractual arrangements are commonly used by the parties to establish conditions for the purchase and sale, and usually are executed by the parties under a commitment of purchase and sale. The buyer can pay the down payment to guarantee the acquisition of the real estate until formalisation is concluded.
• Due diligence. The first stage is obtaining the relevant information not only about the real estate but also about the seller (checking for debts, including taxes). Such due diligence is basically made through certificates issued by the relevant notaries. Those certificates can be obtained in about five business days. It is also important to check for outstanding maintenance expenses, if there are condominiums. Special attention should also be given to certain situations which may afford pre-emptive rights to third parties. For instance, properties subject to lease agreements and properties held in common by two or more owners. The due diligence should cover each transaction related to the property carried out during the last 20 years (see Question 4). If the certificate of title does not cover 20 years, it is important to investigate further on previous titles and registrations.

• Sale contract. After the due diligence of the certificates, if there is no impediment to the sale, the parties normally execute a public deed of purchase and sale, or a promise to sell the real estate, which should be executed before a notary public.
• When legally binding. The purchase and sale deed is binding on the parties once it is executed before a notary public.
• Registration. The purchase and sale deed must be registered with the competent Real Estate Registrar in order to transfer the property to the buyer.
• When title transfers. The real estate is only transferred to the buyer on registration of the public deed with the Real Estate Registrar.
• Length of the process. Normally the procedures related to acquiring real estate in Brazil, without lack of documentation or any other problem, take 15 to 30 days to be completed.

The main legal document to be signed is the public deed of purchase and sale. In all transfers of real estate property and when creating real estate rights it is mandatory to execute a public deed (before a notary public) in order to be registered with the Real Estate Registrar. In some cases, however, it is possible to execute a private deed (a purchase and sale commitment). There are also corporate transfers, which can be made through corporate transactions.

Generally, it is not common for the seller to grant a formal warranty to the buyer. According to the Civil Law, the seller is responsible for:

• Eviction, which means that the buyer will have recourse against the seller, in case of loss of the real estate property acquired due to any judicial order regarding third parties' rights.
• Debts related to the property until its transfer before the Real Estate Registrar, except if the parties agree otherwise.

In some specific deals, such as in the acquisition of companies holding real estate, the seller could give warranties in order to guarantee prior debts or its obligations.

The acquisitions of large real estate portfolios or companies holding real estate are generally financed by private banks or other financial institutions, besides governmental financing in special cases.

There are some other mechanisms that are being used in order to obtain funds in the market, such as the securitisation of credits related to real estate receivables.

From a tax perspective, tax liabilities are bound to the real estate, and the buyer inherits any tax or contribution related to the real estate. Consequently, any debt identified in the certificates provided by the tax authorities during due diligence is generally paid before the transfer of the real estate, or the debt is discounted in the sale price. However, the parties could agree that the seller will be responsible before the buyer for any prior debt.

The same is true for maintenance expenses in the case of condominiums, where the debt is transferred with the property to the new owner, who may have recourse against the former owner.

In addition, the buyer may be liable for environmental violations even though they occurred before the acquisition. Brazil has a severe environmental liability system, composed of civil, criminal and administrative liability. It is possible for an environmental offender to incur all three types of liability concurrently.

Environmental liability in Brazil is propter rem. For this reason, anyone who buys contaminated land will assume the seller's liability for decontamination and any damage caused to third parties. It is common, however, for the seller and the buyer to negotiate indemnities for pre-existing environmental liabilities and in this way the parties can contractually allocate liability, although such contractual provisions cannot affect the parties' liability with respect to claims by third parties.

See Questions 10 and 12.

In addition to taxes (see Question 16), there are costs related to the execution of the deed, and registration of the deed with the Real Estate Registrar under its title number. Such costs vary from state to state.

The buyer is responsible for payments related to execution of the deed, except if the parties agree otherwise.

In the case of a government-owned property or emphyteutics properties, there is also a cost associated with the disposal of the rights related to such properties called Laudêmio, which may range from 2.5% to 5% of the property value. This is usually paid by the seller, except if the parties agreed otherwise.

Real estate brokerage does not have a fixed rate and depends on understandings between the parties, but is usually fixed at a rate of 5% of the market value of the real estate. There might also be attorneys and accountants costs. The brokerage fee is usually paid by the seller.

There is no VAT in Brazil.

There are the Real Estate Transfer Tax (ITBI) and Transfer Causa Mortis and Donation Tax (ITCMD). ITBI and ITCMD are calculated based on the market value of the property or its appraised value, whichever is higher.

The ITBI, also known as SISA, is a municipal tax payable by the buyer on the acquisition of real estate. The ITBI rate varies from city to city, but is usually fixed at a rate of 2%.

The ITCMD is a state tax due by the person who receives assets or rights (including real estate) in donations or in estate proceedings. The ITCMD rate varies from state to state, but is usually fixed at a rate of 4%.

If ITCMD applies on a transfer of real estate, then the ITBI does not apply.

See Question 12.

It is common for companies to hire services from third parties to manage real estate portfolios and accommodation needs.

Generally, there are very few restrictions on foreign entities owning or occupying real estate or giving guarantees or security for real estate ownership.

In rural areas, property ownership is restricted to foreign entities authorised to function in Brazil or persons residing in Brazil. Even in this case, specific legislation imposes restrictions, especially with regard to the size of the property and the ownership of the foreign entities.

However, these restrictions do not apply to the acquisition of land in rural areas by companies organised in Brazil, even if such companies are substantially controlled by foreign investors.

Further, foreign citizens are not able to acquire land in seashore areas or on the borders of the country (which range from the borders of the country to a parallel limit of 150 km) without special governmental authorisation. This restriction does not apply to foreign-controlled entities.

Properties owned by foreign governments or international organisations can only be used for the performance of their activities.

The change of control of a company does not affect its holdings of real estate. Lease agreements may contain clauses limiting the change of control of the company acting as a tenant or guarantor.

The owner can be deprived of real estate property in the event of expropriation, for public (social) need or interest, or if so demanded, in case of imminent danger.

Expropriation is regulated by the Constitution, which guarantees the owner prior and just compensation, in cash or public bonds, and may be related to urban properties or land reform. Specific legislation deals with the subject in detail. Expropriation must be justified and the purchase price will generally be market value. The price and all the conditions of the expropriation will be discussed judicially. Provisory tenure to the property may be granted to the government by a court in the event of expropriation, if the price is properly deposited with the owner.

The Urban Property Tax (IPTU), a municipal tax levied annually on the appraised value of the real estate, is paid by the owner of real estate located in urban areas. Rates vary from city to city. There are also some municipalities that require the payment of extra tax on real estate used in economic activities, and on the disposal of waste.

The Rural Property Tax (ITR) is a federal tax levied annually on the appraisal value of the real estate located in rural areas. The owner (or the person who uses the property) is responsible for the payment of this federal tax. Rates vary, according to the size and productivity of the property, from 0.03% to 20%.

There are very few exemptions, which have to be investigated on a case-by-case basis.

Real estate can be used as assets by a shareholder to increase the capital of a company. Real estate is also considered a strong guarantee for loans and other sorts of financing, through mortgages.

Mortgage rules in Brazil differ from those found in the US and in other countries of Anglo-Saxon origin. The chief difference is that a Brazilian mortgage (hypothec) gives the creditor the right to satisfy the debt through judicial sale of the mortgaged property, but does not convey title or ownership, unlike a common law mortgage which gives the mortgagee a defeasible title to the property.

It is also possible to raise funds to finance a business through a sale and leaseback transaction.

Lease terms are regulated according to the Lease Law, which regulates residential leases, temporary leases and business leases of urban real estate properties. Special statutes may apply to leases of hospitals, schools and other particular social activities, as well as to leases to government entities.

• Rent review?
• Disposal?
• Repair?
• Insurance?
• Length of lease term. There is no minimum or maximum term for lease agreements of business premises, which may also be entered into for an undetermined term. However, in order to protect the tenant's business, if the contract lasts for five years or more, the tenant is entitled to request the renewal of the contract in court, provided that a written contract was executed and the tenant has been continuously performing the same business for at least three years.

• Rent review. There can be three different types of rent review (Lease Law):

• by mutual agreement;
• periodic escalation according to inflation indexes (automatic adjustment of the rent in view of inflation);
• judicial review (through a judge's decision to re-establish the market value of the rent).

• Disposal. In the case of a sale, promise to sell, assignment or promise of assignment of rights, the tenant is entitled to a right of first refusal to acquire the real estate under the same terms and conditions.

• Repair. The landlord is responsible for extraordinary maintenance and condominium expenses, such as structural repairs, external painting of the building, fire and security equipment, gardening and so on.

• Insurance. Except as otherwise agreed by the parties, the landlord is responsible for the costs of a fire insurance policy.

No VAT is levied on the rent of real estate properties. However, rent may be subject to income tax. If there is a corporate owner, the rent may also be subject to social contributions.

Except as otherwise agreed in the lease contract, the assignment of part of the lease contract and the sublease of part of the property to a group company depends on the prior written approval of the landlord.

The tenant can terminate the lease for cause, if the landlord does not comply with its contractual duties.

The tenant can also terminate the lease before the date determined in the lease contract by paying a penalty, which can be:

• Previously determined in the lease contract.
• Determined according to the Civil Law.
• Judicially determined.

In residential leases, the tenant will not be required to pay a penalty if the termination of the lease occurs due to the transfer of the tenant to another city by his employer. In this case the tenant must give the landlord at least 30 days' advance written notice.

During the term of the lease, the landlord may have the right to terminate the lease for:

• Breach of contractual duties by the tenant.
• Lack of payment of rent or any other contractual costs.
• A need for urgent repairs to the property if the repairs:

• cannot be executed with the tenant occupying the property; or
• can be executed with the tenant occupying the property, but it does not agree with them.

Agreements can contain termination clauses which may authorise, for instance, termination on insolvency, bankruptcy, agreement with creditors and similar events.

If the property is sold, the new owner can terminate the lease agreement within 90 days from the registration of the relevant deed with the Real Estate Registrar, except if the lease agreement contains a clause providing that the agreement remains in force on the sale of the property (and the agreement is registered before the Real Estate Registrar). In this case, the new owner will have to continue the lease agreement.

The tenant's insolvency does not automatically cause termination of the lease except if the parties agree otherwise. The court-appointed trustee, however, has a legal right to terminate the lease if it is no longer beneficial to the bankrupt estate.

To protect the tenant's business, if a written contract has a five-year term or more, the tenant can request the renewal of the contract in court, provided that the tenant has been continuously performing the same business for at least three years and has fully complied with its contractual obligations.

A tenant can have security of occupation (direito de retenção) until it is duly indemnified for certain investments made in the leased premises.

Conversely, the landlord can refuse to accept the return of the property on termination of the lease until the tenant complies with certain obligations, such as the obligation to paint the property.

Urban planning policies are carried out by municipal governments, according to Law 10.247, which establishes the general directives for urban policy, among other matters. There are also construction rules established by each city and laws related to the environment, fire department, historical patrimony and so on.

Authorisation must be requested from the municipal government for construction and most refurbishment and expansion work. Several governmental approvals may also be required for real estate development.

Additional authorisations may be necessary for, among other things, buildings designated as historical sites or areas located within environmental conservation units.

• To which body or bodies are initial planning applications made?
• Do third parties have the right to object?
• In what circumstances is there a public inquiry?
• After how long from the application does an initial decision take?
• Is there a right of appeal?
• About how long does the whole procedure take?
• Application. Planning applications must be made to the municipal authority.
• Third party rights. Third parties have the right to object.
• Public inquiries. Public inquiries will be held for large-scale urban projects, especially when there is local opposition.

• Initial decision. The initial decision depends on the project. There is no time period fixed for the decision.
• Appeals. In the event of an unfavourable decision, it is possible to bring an administrative appeal. If the administrative appeal is unsuccessful, an appeal can be made to the courts.
• Duration. The time required to complete the procedure varies greatly, depending on the nature and size of the project.

The Brazilian legal system has been recently much consolidated in relation to real estate and leases. Substantial changes in the laws related to these matters are not expected in the near future, even though several bills may be pending before Congress.

The trend for the future will probably be the approval of new laws and rules relating to the development of the real estate market, using real estate through new investment vehicles, funding mechanisms and security structures. For example, there are already several investment mechanisms that are being used to develop the market, such as:

• Securitisation of credits related to real estate receivables (Certificado de Recebíveis Imobiliários and Cédulas de Créditos Imobiliários).
• A Real Estate Investment Fund (Fundo de Investimento Imobiliário), which is similar to the American REIT.
• New rules regarding "space adrift" (the right to exceed normal construction limits imposed on the real estate, by purchasing additional construction rights from the municipal authorities in connection with the funding of special urban expansion projects).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.