On November 27, 2024, a preliminary injunction was granted by the judge of the Disciplinary Board to suspend the effects of CNJ Provision No. 172/24, issued by the National Disciplinary Board of the Courts, which had restricted the possibility of formalizing fiduciary transfer (alienação fiduciária) of real estate through private instruments solely to entities authorized to operate within the Real Estate Financing System (SFI). As a result of this decision, the validity of fiduciary guarantees over real estate executed through private instruments remains in force.
Justice Mauro Luiz Campbell Marques, accepting a request filed by the Federal Government, suspended the effects of CNJ Provision No. 172/24. He argued that the Provision, by requiring that fiduciary transfers of real estate be executed by public deed when the fiduciary creditor is not part of the SFI or the Housing Finance System (SFH), increases transaction costs for consumers and reduces market competitiveness. In his decision, the Justice emphasized that Article 38 of Law No. 9,514/97 allows that “the acts and contracts referred to in this Law or resulting from its application, even those intended to create, transfer, modify, or waive real rights over real estate, may be executed by public deed or by private instrument with the effects of a public deed.”
The Federal Government presented estimates of increased costs for real estate financing contracted outside entities authorized to operate within the SFI or SFH, also arguing that the Provision has harmful effects by increasing the time required to formalize credit transactions.
An important observation highlighted by Justice Mauro Marques is that the system of fees and notarial charges in Brazil falls under state jurisdiction, resulting in significant differences in the cost of public deeds among the various states of the Federation.
According to Justice Mauro Marques, the Provision contradicts the law and excessively burdens credit transactions, affecting both consumers and real estate developers. He noted that “the security that was sought has been generating significant economic impacts on the Brazilian economy, increasing household indebtedness and raising the cost of financial transactions carried out by other entities also authorized to grant credit. Therefore, at this time, I deem it appropriate to suspend the effects of the regulation until further analysis and reflection are conducted, so that a measure can be reached that ensures the desired security while not excessively burdening credit granting in the country.”
Accordingly, he ordered the immediate suspension of the effects of the Provision and determined that the Brazilian Notary Office be notified to submit suggestions to mitigate the identified economic impacts.
In addition to the above decision, on December 13, 2024, a ruling by the Brazilian Federal Supreme Court (STF) recognized the possibility of formalizing fiduciary transfers of real estate through private instruments with the effects of a public deed.
This decision, rendered by Justice Gilmar Mendes in Writ of Mandamus No. 39,930 (Federal District), has a direct impact on CNJ Provision No. 172/24 and reinforces the reasoning adopted in Justice Mauro Marques’s suspensive decision.
Access the full STF decision here:
https://portal.stf.jus.br/processos/downloadPeca.asp?id=15372944506&ext=.pdf