The fair definition of real economic value when canceling mortgages

Regarding the collection of fees concerning work carried out by notaries and for extrajudicial services, an important decision was recently handed down by the Hon. Inspector General of the Brazilian State of São Paulo Department of Justice, Judge Fernando Antonio Torres Garcia, in the records of Administrative Appeal 1001073-03.2020.8.26.0547.

Examination of the topic – raised in a consultation by a Land Registry Officer, based on the requirement of fees to register mortgage cancellations in a land installment which fell on plots that were part of a real estate project, under the mistaken understanding of an extrajudicial service on an individualized collection – revealed that the decision was correct concerning the appeal filed by the Registrar, with firm support in current legislation, despite the appellant's efforts to present arguments in defense of the cancellation of mortgages in each of the registrations of the individually guaranteed lots.

The officer insisted that the fees were BRL 74.936,58 and not BRL 3.041,17.

The guideline established by the State of São Paulo Department of Justice is fully justifiable, in light of the legal system in force, and avoids undesirable distortion in interpretation of the norms that govern the matter, such as decided by Brazil’s Superior Court of Justice, on June 9, 2015, in Special Appeal 1.522.874-DF, as the Civil Justice Attorney clearly demonstrated in the records of the appeal.

The real guarantee required from the developer, under Law 6.766/76, in favor of the municipality, to establish infrastructure, as expressly stated in item 182, Chapter XX, of the Brazilian State of São Paulo Department of Justice’s Service Rules, was carried out and charged as a single act, and so it should be in relation to the cancellation, pursuant to article 237-A, of Law 6.015/73 (Public Records Law/Lei dos Registros Públicos), which provides for the collection of fees as an unique act, “regardless of the number of autonomous units involved or of existing intermediate acts.”

To reinforce this understanding, it is worth remembering Explanatory Note to Table II of the Discipline of Fees, in state Law 11.331/02, which provides for the distinction between the fees due for the registration of the real estate project and those due for registration of the disposals of the lots (fractions or units).

This guideline is not affected by the opening of registrations for the lots, as well established in the judgment of the appeal, in the same vein of precedent signed by the then Inspector General of Justice, Judge Geraldo Francisco Pinheiro Franco, on February 15, 2019.

Objections that may be raised do not have the power to avoid the inescapable incidence of article 237-A of the Public Records Law, which governs the matter in dispute; nothing justifies the change of the fair and legal administrative guideline in question.

For this reason, the Brazilian State of São Paulo Department of Justice consolidated an important guideline, under the understanding that the cancellation must be charged as a single act, even if it does cover not only registration within the main registration, but also those in each one of the batch registrations.

In this sense, the opinion of the Department’s Assistant Judge Stefânia Costa Amorim Requena must be highlighted. She clarified the issue and offered important subsidies to the Inspector General, stating that registration of the Term of Verification of Works (Termo de Verificação de Obras/TVO) within the registration in which the subdivision was registered does not interfere with this conclusion. In fact, the mortgage was contracted before its issuance to guarantee the infrastructure in the subdivision itself – and thus is related to obligations taken on by the subdivision and that concern the enterprise (item V of 18 of Law 6.766, of December 19, 1979).

She continues: “The TVO indicates the point from which, vis-à-vis third parties, the exceptional rule of art. 237-A of Law 6015/1973 is no longer relevant. However, this does not mean that the TVO necessarily excludes special provision for the acts performed or requested by the developer, but that they are still broadly linked to the execution of the subdivision – as is, precisely, the hypothesis of cancellation of the rights in rem in question, after their purpose has been exhausted, as it has been verified that there is no more infrastructure work to be carried out.”

Therefore, in this promising scenario, it is imperative to recognize that a legitimate brake was rightly established to avoid the high and unfair collection of fees, in the course of the allotment process, specifically for the registration of the cancellation of mortgages, with determination, for the purpose of calculation as a single act.

Márcio Martins Bonilha Filho is a retired São Paulo Court of Justice (Tribunal de Justiça de São Paulo/TJSP) judge who served for 15 years in the city’s 2nd Court of Public Records. Bonilha presided over the 11th Public Tender for the Delegation of Extrajudicial Services. He is also a partner at the Barcellos Tucunduva law office; and member of the Advisory Board of the Brazilian Institute of Real Estate Law (Instituto Brasileiro de Direito Imobiliário/Ibradim).

Source: Anoreg BR