BRAZIL Law and Practice Contributed by: Alberto Malta, Davi Ory, Ana Vogado and Maria Eduarda Amaral, Malta Advogados
acquisition, registration, land use, leasing and financing. For acquisitions involving federal government- owned properties, specific administrative proce - dures apply under Statutes No 9,636/1998 and No 13,240/2015, requiring prior appraisal, bid - ding and demonstration of public interest. For rural properties, Statute No 5,709/1971 imposes restrictions on acquisitions by foreign - ers, whether individuals or legal entities, includ - ing limitations on size, location and required governmental approvals. 2.7 Soil Pollution or Environmental Contamination A property buyer may be held liable for pre- existing environmental damage, such as soil contamination, even without having caused it. This is due to the strict liability regime and the propter rem nature of environmental obligations, meaning liability is tied to the property itself and not the conduct of the owner. This principle is established in Statute No 6,938/1981 (National Environmental Policy) as well as the Forest Code and reaffirmed by the STJ in Theme 1,204. While good faith may not exempt the buyer from liability, it may support recourse claims against the seller. 2.8 Permitted Uses of Real Estate Under Zoning or Planning Law Real estate project feasibility is primarily assessed through the municipal master plan and Zoning Law, which are both established under the City Statute. Many municipalities provide access via dedicated platforms.
For projects that fall outside standard param - eters, developers may negotiate with public authorities through instruments such as: • agreements for additional building rights or changes in land use; • joint urban operations (o • perações urbanas consorciadas ), which allow zoning adjustments and the issuance of certificates of additional building potential (CEPACs) to fund urban infrastructure; and • conduct adjustment agreements (TACs), used to regularise developments under Statute No 7,347/1985. 2.9 Condemnation, Expropriation or Compulsory Purchase While property rights are strongly protected in Brazil, ownership is not absolute. The law per - mits expropriation for reasons of public necessi - ty, public utility or social interest, provided there is prior and fair compensation in cash, except in sanction-based expropriations (eg, land used for illegal drug cultivation or slave labour), which allow confiscation without compensation. Expropriation must serve one of the following constitutional purposes: • public necessity: urgent needs, such as infra - structure in risk areas (eg, dyke construction); • public utility: convenience-driven works, like opening urban roads; and • social interest: implementation of public policies, such as agrarian reform, affordable housing or public schools. Compensation includes the market value of the property, actual damages (eg, improvements) and statutory additions, such as compensatory and late payment interest.
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