The express authorization to use a private instrument with the effect of a public deed is in harmony with the interpretation of the two legislative systems, the general and the special.
The CNJ, in its analysis of administrative control procedure 0000145-56.2018.2.00.0000, unanimously confronted and established the understanding of the correct interpretation of the issue, in view of administrative provision 93/20, of the eg. court of Minas Gerais.
The aforementioned provision of the TJ/MG expressly provides, in line with articles 108 of the Civil Code1 (general rule) and 38 of law 9.514/972 (special rule) that acts and contracts relating to the fiduciary alienation of real estate and related business may be entered into by public deed or private instrument, provided that, in the latter case, it is entered into by an entity that is part of the SFI - Real Estate Financing System, by credit cooperatives or by a real estate consortium administrator (art. 954 of the extrajudicial service rules).
The express authorization to use a private instrument with the effect of a public deed is in harmony with the interpretation of the two legislative systems, the general (Civil Code) and the special (fiduciary alienation law).
Due to the limitations of space and time, the methodological focus of this article is to delimit and report on the scope of this decision, without necessarily tackling the long and complex legislative, doctrinal and hermeneutical movement on the subject3, dialoguing superficially with an article contrary to the collegiate interpretation.
As a result of this decision, the legitimacy of the provisions contained in the administrative provisions of the ombudsman's offices of the states of Minas Gerais, Paraíba, Pará and Bahia was confirmed. These states prohibit the signing of private sale and purchase instruments with fiduciary alienation by private companies (land developers) and private individuals in general.
On the other hand, negative reactions and consequent analyses of the economic repercussions of the decision were to be expected, such as an article published by the Migalhas4 portal (10/8/23) by Dr. Renata Mathias de Castro Neves and Dr. Kelly Durazzo, entitled: "CNJ ratifies TJ/MG ruling that limits the use of private instruments for fiduciary alienation only to entities that operate in the SFI".
The authors reacted both to the ratio decidendi (we won't deal with it in this article) and to the practical reverberations in the market (real estate players), indicating the possibility of an increase in the cost of financing to be passed on to the end buyer, as well as reinforcing the competence of notaries to draw up deeds of sale and purchase with fiduciary alienation.
In addition, they emphasize the potential for a substantial increase in the transaction for the consumer, insofar as fees inherent to the public deed will be charged.
Finally, in summary, the plaintiffs make a prognosis of possible unfeasibility of projects, given the increase in the "cost of the real estate operation", concluding that it may be difficult to obtain credit as a result of this requirement.
Collating the thoughts for and against the decision corroborates to establish a dialectic on the subject, thus analyzing the matter in a more scientific and practical way, without divorcing ourselves from the practical reality of the more than 5,570 Brazilian municipalities.
These co-authors sought information from the private sector in order to create a business interface, rather than simply a legal one. The importance of an economic analysis of the law for any legal instrumentation is well known.
Therefore, in order to be able to efficiently apply the correct legislative interpretation set out in this recent CNJ decision, it will be necessary to address the entrepreneurs' points and evaluate them.
Without rebutting, in detail, the items exposed by the worthy authors, the point of greatest complaint in a survey carried out by us, was the supposed delay in formalizing the instruments by the notaries, resulting in a possibility of the entrepreneur "being left in the lurch", that is, with this supposed deficient service by the notaries, it could in theory cause the harmful aspects mentioned by the authors.
It's worth pointing out that not all notaries are notaries, but a small portion, which could, in theory, even harm the circulation of wealth. But even so, this practical survey, divorced from institutional interests, deserves our attention.
In this regard, the market, which is increasingly competitive, demands agility in the service and formalization of business instruments, whether private or public. In fact, the issue of competence indicated by the authors aims to demonstrate the risk of the entrepreneur not having his demands met in the time that the market and competition require, and not in the time of the notary or notary public, who may be dissociated from business needs.
It is intuitive that the biggest concern about the supposed setback, or potential unfeasibility of business, is the time it takes to provide the notarial service, not least because the criticism of the registry obstacles in qualification will surely be reduced, given the public faith inherent in deeds, to the detriment of private instruments, facilitating and ensuring greater agility in registry qualification.
As a clear solution to this possible obstacle, the e-notary platform and the correct interpretation of the notary and real estate jurisdiction5 make it possible to have a state option for notaries, eliminating the supposed lack of service at the appropriate time:
"Art. 19: It is the responsibility of the notary public of the district of the property or of the purchaser's domicile, remotely and jointly to
exclusively, to draw up the deeds electronically, through eNotariado, with videoconferencing and digital signatures of the parties.
§ Paragraph 1 When there are one or more properties from different districts in the same notarial act, the notary public of any of them shall be competent to perform remote acts.
§ Paragraph 2 - If the property is located in the same state as the purchaser's domicile, the purchaser may choose any notary's office in that state to draw up the deed.
§ Paragraph 3 For the purposes of this provision, the acquirer is understood to be, in this order, the purchaser, the party acquiring a right in rem or the party in respect of whom a claim is recognized."
In other words, if the notary's office doesn't respond in time, the entrepreneur will be able to use electronic acts, not depending solely on a notary's office, which is often the only one in the municipality. This will even foster institutional improvement.
With regard to the price of the deed, it is the same at state level, with a small difference (municipal ISS), and the granting of discounts on notarial acts is forbidden and considered a crime.
Finally, we will come back to these preliminary conclusions in further discussions on the subject, but we cannot fail to point out that the decision values extrajudicial advocacy as a means of realizing extrajudicial due process of law:
With the recent unanimous decision (CNJ), the public deed of fiduciary alienation between private individuals has become mandatory, allowing the exceptional private form only for the financial entities of the SFI and SFH, and this is an essential measure for administrative implementation by the other General Courts of Justice.
Raising the awareness of professional bodies, preparing and retraining notaries to provide faster services to private companies.
A reduction in cases of fraud in legal transactions concluded by private instrument, which are constant and part of the routine of the Brazilian Judiciary.
Greater intervention by notaries in the State's oversight of tax collection and the fight against money laundering and terrorist financing.
Greater legal certainty and consumer protection.
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BRAZIL. Federal Constitution, Federal District, 1988. Available at https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Accessed on 20.08.2023.
BRASIL. LEI N. 10.406 DE 10 DE JANEIRO DE 2002. Civil Code, Brasília, DF, Jan 2002. Available at https://www.planalto.gov.br/ccivil_03/leis/2002/l10406compilada.htm Civil Code. Accessed on 20.08.2023.
CNJ. NATIONAL COUNCIL OF JUSTICE - Administrative Control Procedure No. 0000145-56.2018.2.00.0000. Reporting Minister: Mário Goulart Maia Judged in 2023. Available at: https://www.cnj.jus.br/pjecnj/ConsultaPublica/DetalheProcessoConsultaPublica/listView.seam?ca=0bb27443bbdeda3090f2f1edadae6b7639b484d172d84d8e - judged on 09/08/2023 - accessed on 20.08.2023
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Source: Migalhas