Publicado em 13/01/2022

Provisional Measure to improve the business environment in Brazil (MP 1.085)

On December 28, 2021, a Provisional Measure No. 1,085 (MP 1,085) was enacted with the main purpose of contributing to the improvement of the country’s business environment, through the modernization of public records and expansion of the electronic system of public records created by Federal Law No. 11,977/2009 (SERP).

The SERP aims to, among other things, enable:

i) the electronic public record of legal acts and transactions;

ii) the interconnection of the database between the services;

iii) remote service to users through the internet;

iv) the reception and sending of documents and titles, in electronic format, including in a centralized form, for later distribution to the competent services;

v) the electronic visualization of the transcribed or registered acts in the services;

vi) consultation to: (a) unavailability of assets decreed by the Judiciary or by public entities; (b) restrictions and encumbrances of legal, conventional or procedural origin levied on movable and immovable property registered in public records; and (c) acts in which the researched person appears as a debtor of a protested and unpaid title, real guarantor, financial leasing company, conventional credit assignor or holder of a right over an asset subject to procedural or administrative constriction.

In addition to the SERP, which shall be regulated by the CNJ, MP 1,085 provides for several relevant real estate topics, among them:

• Federal Law No. 4.591/1964 (Law of Real Estate Development):

i) Change to 10 business days the deadline for analysis and registration of the incorporation memorials.

ii) Automatic extinction of the segregate estate (patrimônio de afetação), to occur after the registration of the construction and registration of the purchase promise and the purchase and sale agreement. The instruments must be register along with the statement of discharge from the financial institution that carried out the construction.

iii) Annotation of cancellation of the segregate estate, to occur after the fulfillment and extinction of obligations by the developer.

iv) Revoke the validity term of the incorporation memorial, and stipulate the need for revalidation, if the incorporation does not occur within 180 days, making it impossible to negotiate units if the incorporation is not carried out within the period mentioned above.

v) Accomplishment of the incorporator’s dismissal through extrajudicial procedure.

vi) Exclusion of the provisions that determine the non-retractability and the right to compulsory adjudication of purchase and sale agreements, purchase and sale promises, assignment or promise of assignment of autonomous units, in the hypothesis of the registration of agreements involving third party purchasers.

vii) Dismiss of the certificate of suitability to register the incorporation memorial, by a financial institution.

viii) Proceed with the unification of the institution of the condominium and the real estate incorporation, to be considered a single act.

• Federal Law No. 6.015/1973 (Public Records Law):

i) Reduction of deadlines and counting of deadlines to business days, in accordance with the Code of Civil Procedure.

ii) Institution the alternative of bookkeeping, publicity, and record keeping in electronic form.

iii) The acts listed in articles 127 and 129 of the Public Records Law will be registered at the domicile (a) of the parties, when they reside in the same territorial jurisdiction; (b) of one of the debtors or guarantors, when the parties reside in different territorial jurisdictions; or (c) of one of the parties, when there is no debtor or guarantor. This provision will only come into effect on January 1st, 2024.
iii)Inclusion of the following registrable acts: commitment to exchange, payment agreement for environmental services (in the hypothesis of verification propter rem obligations).

iv) Availability of the certificate of legal status of the property, issued by the real estate services, which must contain the most relevant information related to the property (owner, summary description, encumbrances, rights, judicial and administrative restrictions and taxpayer number).

v) Inclusion of registrable acts, foreseen in article 167, II: assignment of credit containing a real guarantee on the property, registration process, rural pledge (registered in book 3).

vi) Inclusion of titles by single statements or other documents, in order to facilitate existing requirements for records, being possible to complement elements that do not change essential requirements of the act or legal business related to other documents and separate statements.

• Federal Law No. 6,766/1979 (Allotment Law): reduction of the term of protest certificates essential to the registration of allotment.

• Federal Law No. 8935/1994 (Notaries’ Law): establishing the obligation of notaries and registrars to accept the receipt of costs and fees by electronic means.

• Federal Law No. 13.465/2017 (Rural and Urban Land Regularization Law) by enabling the performance of registration acts and administrative procedures by electronic means.

• Federal Law No. 13097/2015: stipulate that the property registration must contain sufficient information, in order to prove information in the field of rights, real liens, properties and any restrictions on the property.

Additionally, MP 1,085 brings other important innovations, by modifying the Civil Code, regulating the so-called Lot Condominium, in addition to removing the possibility of the provision of EIRELI as a Private Law legal entity, revocation the prohibition of registration on the same day of in rem right and mortgage on the property when a deed does not indicate data and time of the drafting and establish the use of the partner’s or individual’s address for registration in the case of virtual activity.

Dias Carneiro Advogados is entirely available to provide any clarifications and to assist with this matter.