The newest Extrajudicial solution for resisted transmission of real estate

Compulsory award action may occur only when a promise to buy and sell a property and one of the parties makes it difficult or impossible to transfer the property.?

The overthrow by the National Congress of the presidential veto to Article 11 of Federal Law No. 14,382, which occurred on Christmas eve last year, allowed the performance of the Procedure for Compulsory Award of Property can be carried out directly in a registry office throughout the country, having as initial document the preparation of a Notarial Ata, made by the notary of notes.

The realization in notary, from now on, presents the advantage of the procedure, which was previously done exclusively via judicial and took up to five years to complete, begins to be carried out extrajudicially, in the average time of up to three months, depending on the case, and more cheaply, through Notarial Ata in Notary Notes.?

The vice-president of the Notarial College of Brazil, Rio de Janeiro section (CNB/RJ), Edyanne Frota Cordeiro, confirmed that to relieve the Judiciary and be faster for the user, the procedure might be done through the notation notes. This happens whenever the person has already paid for the property and needs the title: That is, one needs to be able to dispose of the property thoroughly, whether to rent, sell, or give as collateral.??

Evidencing:

The vice president of CNB / RJ explained that the person would have to prove in the registry, through documents such as bank statements, copies of checks, and by various legal means, that they paid and also tried everything to receive the property of the person who promised to transfer ownership when he received the price and did not, as well as your inventory if the item was cleared. Several reasons may explain why this did not occur: the person was absent, is in an uncertain place and not known, has died, because he does not want, indicated the vice president. She states: "Sometimes it may be a construction company that has gone bankrupt or ended, or its representatives are refusing to comply with the agreement previously signed."?

According to said, "the important thing is that everything has already been paid and the person has not received the definitive deed, that is, the title of the property to register in the real estate registry". It may also occur that the person paid the property but has yet to pay the Property Transfer Tax (ITBI), which must be paid when a property is purchased. "As long as the tax is not paid, it cannot lead to the registration of property."?

The Ata Notarial document must include the identification of the property, the name and qualification of the buyer or his successors contained in the promise contract, proof of payment and the characterization of the default of the obligation to grant or receive the title of a property. "Because the property title is yours (of the person who paid for the property). It's just a matter of formality. You've already paid for everything, and you don't owe anything. It's like you're going to claim that title for yourself and take what's yours, Edyanne said.

In addition to ensuring the authenticity of the documents, the 'notarial ata' may attest to the availability or unavailability of the property and the discharge of the legal business by submitting to the notary several documents, such as income tax return, e-mail and text messages between the dealers who prove receipt by the seller, in addition to bank statements and other facts that are not demonstrated by documents. The messages exchanged between the contracting parties can verify the attempts made to obtain the final deed, evidencing difficulty or impossibility and being the actual proof of the seller's refusal to grant the definitive act.?

The vice president of CNB/RJ pointed out that if there is already a compulsory grant procedure in progress in the Judiciary, the user must request approval of the withdrawal request through his lawyer or public defender so that the act can follow the extrajudicial route.