By Marcio M Bonilha Filho, partner in the Public Registry area
In the area of Public Registries, Brazil has several types of registry offices.
Technically, the correct terminology is delegated public service, where extrajudicial activities are performed.
In order to facilitate the different attributions, Federal Law nº 8.935/94, which regulated article 236, of the Federal Constitution, explained the separation of the extra-judicial cartorios, according to specialty, thus defined: Notarial Office, Notarial Office of Protests, Real Estate Registry Office, Registry Office of Titles and Documents, Civil Registry Office of Legal Entities and Civil Registry Office of Natural Persons.
For better understanding and to avoid the undesirable use of 'legalese' in this article, I take the liberty of using the nomenclature 'notary'.
Briefly, in essence, a Notarial Office, also known as a Notarial Notary, is the office that draws up public deeds such as power of attorney, purchase and sale, wills, inventories, partitions and extrajudicial divorces, notarial minutes, payment in kind, assignment of credit, donations and other legal acts that require solemnity, in addition to authentication of documents and recognition of signatures.
A "Tabelionato de Protestos " is the registry where executive titles (trade bills, checks, etc.) that have not been paid on time are registered, which results in the indication of the title that has not been honored, and the debtor is notified. In the event of non-payment, the title is protested, with the consequence that the name of the defaulting debtor is placed on the list of bad payers, etc.
TheReal Estate Registry Office is known as a landregistry office, where contracts and public deeds of acquisition of real estate are registered, as well as other titles that create some right or restriction in relation to the property (mortgage, fiduciary alienation, usufruct, easement, incorporation, condominium, pledge, inalienability, etc.). Acts of annotation or registration are carried out, in addition to the issue of a certificate, containing information about the property, the history of the chain of ownership and the name of the owner of the property. In relation to this specialty, the rule of delimitation of the territorial area covered by the Real Estate Registry applies, so that the acts relating to the real estate situated in this area must be done at the Real Estate Registry which covers this area, in compliance with the principle of territoriality.
TheTitles and Documents Registry Office is responsible for registering documents for preservation purposes, bearing in mind that the certificate is valid as an original document and will have effect before the whole society (erga omnes). Extrajudicial notifications are the responsibility of these Registry Offices.
TheCivil Registry Offices of Legal Entities are those in charge of registering non-corporate legal entities (corporate legal entities are registered with the Board of Trade of each State). Associations and foundations are registered in these registries.
Cartório de Registro Civil das Pessoas Naturais (Civil Registry Office for Natural Persons ) are the units where birth, marriage, death, interdiction, emancipation, adoption and all changes to these registrations are registered, such as name change, civil status, etc., involving the history of citizens' civil lives.
Among the various natures and specialisations, it is worth highlighting that the services provided by the Civil Registries of Natural Persons are those most directly linked to the population, to the extent that they are considered to be "citizenship offices".
For this very reason, the civil registry of natural persons is the one that confers the fundamental human right, which enables the exercise of citizenship and dignity of the human person, providing the first document of the citizen's life, represented by the birth certificate.
In this context, considering that many acts performed there are free of charge and that the revenue is generally not high, it was established the creation of a fund to pay for free services, performed by the Civil Registry of Natural Persons.
The origin of the creation of this fund is old, so much so that in the State of São Paulo, always at the forefront, since 1988 there has been a State Law to pay for the free services provided by the RCPN. When this State Law came into force, it was called "Robin Hood Law"because it took parcels from the most profitable services (Notes, Protest, Real Estate) to give to the Civil Registry of Natural Persons, less profitable and, sometimes, deficient.
Recently, the Federal Supreme Court was called upon to face a Direct Unconstitutionality Action, filed by the Attorney General of the Republic, which questioned the law that created the Fund for Support to the Civil Registry of Natural Persons of the State of Amazonas (Farpam).
In the aforementioned ADI 5.672, the Attorney General's Office challenged the Amazonian law 3.929/2013, which created the Farpam in order to fund the acts performed free of charge by registrars of natural persons and the maintenance of loss-making offices. The source of the revenue is part of the resources from the acquisition of the electronic seal of inspection and emoluments of the extrajudicial services.
The guideline set out in the vote of the Rapporteur, Minister Cármen Lúcia, who dismissed the ADI, prevailed by a large majority, in a trial held by the Full Court, in a virtual session, which ended on 18 June.
Minister Cármen Lúcia rejected the thesis of usurpation of competence of the Union to legislate on public records, arguing that the Amazonian law was restricted to the creation and regulation of the fund, without changing the rules on the validity, form, content or effectiveness of the acts performed by delegates of notary and registration services in the Amazon.
The STF also recognized that the amounts to be collected do not constitute tax revenue, but have the legal nature of a fee, adding that the fund has a public nature, evidenced by the social purpose of funding acts performed free of charge by the registrars of natural persons and the maintenance of loss-making registries.
In this sense, the reporting Justice referred to the fact that the STF recognizes the validity of state rules that provide for the destination of part of the fees received by notaries and registrars to special Funds of the Judiciary, noting in her vote that the administration of the Fund is made possible by agreement, under the direct supervision of the General Internal Affairs of Justice of the Court of Justice of Amazonas.
With these judicious arguments, the STF validated the law of the State of Amazonas that created a fund to pay for free services provided by the civil registries of natural persons.
The decision, in addition to being technical, in its consideration of the questions posed by the Attorney General'sOffice, has an important bias of sensitivity and knowledge about the eminently social activities performed by the 'office of citizenship'.
The creation of the fund was conceived to correct an injustice in a situation where several relevant acts are performed free of charge by the Civil Registry of Natural Persons, without considering, on the other hand, who would pay for the services. There are countless birth and death certificates issued free of charge.
Without this revenue, the Natural Person Civil Registry offices began to face financial difficulties and losses.
In good time, the State of Amazonas edited the law that creates the fund to pay for free services, which was placated by the STF, to be applauded, because the needy citizens will continue to receive the certificates with the gratuity and the registries will start to receive for the services, thanks to the fund, thus balancing the finances.
