In a decision benefiting the Brazilian and foreign lenders and investors, the Brazilian National Justice Council (CNJ) has suspended the requirement to formalize fiduciary alienation contracts exclusively through public deeds.
This measure once again allows the use of private instruments to establish this type of guarantee, regardless of the creditor’s affiliation with the Real Estate Financing Systems (SFI) and Housing Financial System (SFH).
Previously, CNJ Provisions 172 and 175/2024 required a public deed for all cases of fiduciary alienation of real estate, limiting the use of private instruments to specific financial institutions. However, the CNJ understood that this measure hinders access to real estate financing, affecting consumers and developers, and could generate economic risks, such as:
1. Increased cost of credit (according to studies presented, the costs for issuing deeds could range from 0.8% to 2% of the property value, representing a potential impact of R$ 2.1 billion to R$ 5.2 billion for borrowers);
2. Harm to equality between entities from different states (due to significant differences in the costs of fees in different Brazilian states); and
3. Harm to fair competition between lenders party to the SFI and SFH and other market institutions.
By suspending the public deed requirement, the CNJ aims to ensure accessibility to credit and legal security for transactions. However, it is important to emphasize that this decision is still subject to further analysis in the ongoing administrative process and may undergo changes in its final outcome.
