Unnecessary consent by fiduciary creditors is reinforced for registering fiduciary transfers of supervening real estate properties

On February 24, 2025, professionals specialized in Real Estate Registry Law, represented by the presidents of the Brazilian Real Estate Registry (“RIB”), the Brazilian Operator of the Electronic Property Registry System (“ONR”) and the Brazilian Real Estate Registry Institute (“IRIB”), published Joint Technical Note No. 1/2025, which recommends that real estate registrars do not condition the registration of the fiduciary transfer of supervening real estate properties on the consent of the fiduciary creditor already secured by the same real estate property. Thus, the fundamental regulation introduced by this new type of guarantee has been reinforced.

The fiduciary transfer of real estate properties is the in rem guarantee modality established by Federal Law No. 9,514/1997, by which a debtor transfers – as collateral to the creditor –, the resolvable ownership over their real estate property. Once the fiduciary transfer has taken place, the right of ownership over the real estate property is split, and the resolvable real estate property is granted to the fiduciary creditor – as a right assigned as collateral –, and the fiduciary debtor is granted with the right in rem over acquisition – that is, expected future ownership over the real estate property conditional on settling the debt secured by it.^[1]

This expected or supervening real estate property integrates the assets of the fiduciary debtor as a right in rem and can have significant economic and legal value. As a result, the guarantee over this supervening real estate property develops, making this value useful.

The in rem nature of the supervening real estate property was, for a long time, defended by scholars and case laws as the basis for the possibility of it (the supervening real estate property) being the subject of another (supervening) fiduciary transfer, thus allowing the owner to obtain greater economic benefit from the same real estate property. Thus, structures were created under suspensive conditions – which were feasible and operable without any problems in private relations –, despite facing a certain degree of resistance in terms of access to the real estate registry due to the lack of a specific legal provision – which is a requirement of the Public Law regulations governing the registration activity.    

In response to this situation, Federal Law No. 14,711/2023 (Legal Framework for Guarantees) – enacted in October 2023 –, introduced paragraphs 3 and 4 to Article 22 of Federal Law No. 9,514/1997, describing the fiduciary transfer of supervening real estate properties – whose effectiveness is subject to the cancellation of the original fiduciary transfer (that is, with a suspensive condition attached to its effectiveness, introduced by the law itself) – and, with it, expressly providing for its real estate registration.

Despite this legislative innovation, a few practical difficulties persisted. There has been a certain degree of insistence as to the consent by the original creditor, despite the legal suspensive condition attached to this supervening guarantee. This fact precluded the enforcement of this new type of guarantee.

Joint Technical Note No. 1/2025 reinforces this argument by interpreting the legal text adequately and further seeks to provide orientation for real estate registry offices in Brazil in relation to the registration of fiduciary transfers of supervening real estate properties, informing that the consent of the original fiduciary creditor is not required under the following circumstances:

• Fiduciary transfers of supervening real estate properties do not apply to the rights of the original fiduciary creditor.
• New fiduciary transfers only become effective after canceling the previous fiduciary real estate property.
• The trustor’s supervening real estate property can be freely negotiated without the original creditor’s consent.
• The legislator has not conditioned the supervening fiduciary transfer on the consent of the original fiduciary creditor.

The technical note is merely orientative and does not constitute a binding rule. As a result, it does not impose any obligation on real estate registry offices. However, the recommendations tend to be complied with, or at least are expected to influence the examination of real estate instruments.

Demarest’s Real Estate team is monitoring the developments and effects of the Legal Framework for Guarantees as well as the discussions that concern the implementation of fiduciary transfers and remains available to provide further clarifications.

^[1] The instrument format used for executing the fiduciary transfer (whether public or private) has been the subject of several debates. At present, entering into a private instrument is acceptable, according to the preliminary injunction.