BRAZIL Law and Practice Contributed by: Alberto Malta, Davi Ory, Ana Vogado and Maria Eduarda Amaral, Malta Advogados
• registrable and lasting; and • authorisation of use (precarious and revoca - ble) for temporary occupations. More complex structures include built-to-suit, which links custom construction to atypical leas - ing and sale and leaseback, where a property is sold and immediately leased back, enhancing liquidity without loss of possession. 6.2 Types of Commercial Leases Non-residential leases are the main legal instru - ment for the commercial use of urban real estate. They allow for greater contractual free - dom, especially in contracts with a term of more than five years. The Statute itself provides for specific contrac - tual regimes, such as leasing in shopping malls, which have a broader negotiating autonomy and the built-to-suit model, where the property is built on demand by the tenant with minimum terms and atypical clauses. For rural properties, the applicable arrange - ments are rural leasing, with payment in cash or equivalent and rural partnership, established under the Land Statute, involving shared risks and profits from productive activity. Both require written contracts and must comply with specific legal requirements. 6.3 Regulation of Rents or Lease Terms Rents and contractual terms are negotiable, especially in commercial leases, except for cogent provisions laid down in the Lease Law, which regulates issues such as guarantees, rent review, minimum terms, termination and evic - tions. In cases not covered by this rule, the Civil Code applies on a subsidiary basis.
In agrarian contracts, there are mandatory claus - es set out in Decree No 59,566/1966 and the Land Statute, which limit contractual autonomy due to the social function of the land and the protection of rural producers. 6.4 Typical Terms of a Lease No duration limits exist, although tenants may qualify for compulsory renewal (see 6.17 Right to Occupy After Termination or Expiry of a Lease ). Maintenance responsibilities are divided between landlords (property delivery, pre-exist - ing defects, extraordinary expenses) and tenants (ordinary maintenance, minor repairs). Rent is typically paid monthly and cannot be demanded in advance although it may be where rentals are made on a seasonal basis or there are rental guarantees. Rural leases follow specific legislation requiring three to seven year minimum terms (depending on operation type) and mandatory written con - tracts with statutorily required clauses. 6.5 Rent Variation Brazilian lease agreements may freely define adjustment indices, excluding linkage to mini - mum wage or foreign exchange, with a mini - mum interval of 12 months. Standard practice includes annual adjustments based on IGP-M or IPCA, as allowed by Law No 8,245/1991. Beyond automatic adjustments, rent may be revised: • judicially after three years (see 6.7 Payment of VAT ); or • by mutual agreement.
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