BRAZIL Law and Practice Contributed by: Renata Iezzi, Nicole René Gomes e Cunha and Marcela Correa, Basch & Rameh
3.3.3 Register of Mortgages and Charges Similar to leases, there is no separate mortgage or other security register; see 2.3.3 Aircraft/Engine- Specific Registers . 3.3.4 Statutory Rights of Detention or Non- Consensual Preferential Liens Brazil made a Declaration under Article 39 of the Cape Town Convention, preserving the supremacy of non- consensual claims under national law. No particular categories of non-consensual interests were men - tioned in Brazil’s Declarations. In Brazil, fleet liens have not been asserted in the past. 3.3.5 Verification of an Aircraft’s Freedom From Encumbrances Certificates from the RAB and the International Reg - istry enable a potential purchaser to verify that an air - craft is free of registered encumbrances. 3.4 Enforcement 3.4.1 Differences Between Enforcing Security Assignments, Loans and Guarantees There are relevant differences in enforcing a security assignment as opposed to a loan or guarantee. Security assignments are typically accompanied by notices of assignment and by acknowledgements/ consents from the lessee, given to a security trustee or the ultimate creditor, agreeing to redirect payments to a security trustee and recognising the exercise of lease remedies by the assignee. The executed instrument must be registered with the RAB in order to produce effects. If there is a default under the lease or security assignment, the security trustee (assuming the rights of the lessor under the lease) is able to bring proceedings against the lessee. Remedies available to enforce a loan or guarantee are different. Under Brazilian law, lenders or creditors (whether secured or not) cannot generally apply for reposses - sion of an asset pertaining to the borrower. The usual remedy is, therefore, to seek a money judgment; this would involve a court auction regarding the encum -
creditor and to subsequently credit the balance to the Brazilian operator. A pledge over receivables and related security instru - ments must be registered with an RTD for security perfection purposes. Escrow arrangements of this nature are uncommon with commercial airlines but relatively common with helicopter operators and air taxi companies. See also 2.3.1 Notation of Owner’s/Lessor’s Interests on Aircraft Register . 3.3 Liens 3.3.1 Third-Party Liens As covered in 2.4.5 Attachment by Creditors and 2.4.6 Priority of Third Parties’ Rights , airport and navigational authorities have not sought to exercise liens over aircraft but have occasionally sought to block the export of both commercial and business aircraft for unpaid airport navigation and parking fees (akin to a detention order). Lessor experience on this issue has been inconsistent. In most commercial air - craft repossession cases, lessors have not had the export of aircraft blocked by third parties. There have been a few scattered cases where the SRF sought to confiscate private/corporate aircraft due to violations by lessees of customs and import regulations, with the expectation that Brazilian lessees would indemnify the owners. Although not entirely settled, repairers generally do not have mechanic’s liens over aircraft, but there are a few cases of mechanic’s liens being exercised against leased aircraft. As far as is known, a crew has never asserted a claim against an aircraft for unpaid wages. See also 3.3.4 Statutory Rights of Detention or Non- Consensual Preferential Liens . 3.3.2 Timeframe to Discharge a Lien or Mortgage Liens are considered discharged on the date a release is filed with the RAB.
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