BRAZIL Law and Practice Contributed by: Mariana Cobra, Janaína Vargas, Mayara Zanini and Marcela Freire, Mattos Filho
file (or a court order is entered in favour of the buyer determining the transfer, in case the seller refuses to grant the deed). • Usufruct: may be granted by the owner of a property to a person (usufructuary) to use and collect profits from the property for a definite period and under certain conditions manda - tory by law. • Easement: is a right established between properties. The owners of the dominant and the servient properties must be different persons. 2.2 Laws Applicable to Transfer of Title The transfer of title of real properties in Brazil is essentially governed by the Civil Code and the Public Registration Law. As a rule, these laws apply to all types of property transfers. Acquisitions of federal real properties by private persons are subject to specific rules under Law Nos 9,636/1998 and 13,240/2015. 2.3 Effecting Lawful and Proper Transfer of Title Except as provided in specific laws (eg, Law on the Housing Finance System, Corporations Law), transfer of title requires a deed. Real estate is subject to a registration system that records all forms of property rights and most events involving them. This system is centred on judicial districts, which may have one or more real estate registration offices. This is particu - larly important in case of due diligence because information must be obtained from the relevant judicial district of each property that is analysed. Transfer of title is only perfected upon its regis - tration in the appropriate real estate record file of the relevant real estate registration office of the judicial district of the real estate.
The limitations caused by the COVID-19 pan - demic resulted in important improvements to the process of completing real estate transactions in Brazil, such as remote online deeds which are still being used. Title insurance is not common in Brazil. Local insurance companies do not offer it as a product. 2.4 Real Estate Due Diligence Real estate legal due diligence is carried out by lawyers retained by the buyers. It analyses, at least, in relation to: • real estate: the ownership, existence of liens, compliance with zoning rules, licences, con - struction and environmental issues and tax debts; and • owners aiming to identify: (a) the existence of debts exceeding its assets, which could result in the annul - ment of the acquisition of the real estate by a court for fraud; and (b) the existence of any legal proceedings that could prevent or jeopardise the acquisition of title, the exercise of any in rem rights or its possession. For the same reasons, the chain of title and its previous owners are analysed. 2.5 Typical Representations and Warranties Main and most common representations and warranties made by the seller in connection with the real estate refer to: • lawful, valid and good ownership and/or pos - session; • no liens, legal and administrative proceed - ings, disputes, agreements, debts or other
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