Currently, one of the tools most used as collateral in financing contracts is the fiduciary alienation of real estate, which has been surprising a large number of consumers, entrepreneurs and shopkeepers.
Due to the loss of power of the mortgage (another type of contractual guarantee) and in search of a new tool capable of operating the credit market more quickly and efficiently, the Federal Government - encouraged by the Lobby of the big banks - created Law no. 9.514/97, which regulates the fiduciary alienation of real estate.
With this type of financing, the debtor transfers ownership of the property to the creditor as a way of guaranteeing payment of the debt. Once the contractual obligations have been fulfilled, ownership of the property automatically reverts to the debtor, with retroactive effect to the date the contract was signed.
The major change brought about by Law 9.514/97 is the way in which the creditor can repossess the property (collateral for the financing contract) in the event of late payment of the debt.
To make the transaction legally effective, the contract is registered at the Real Estate Registry Office, which means that the property rights are transferred to the creditor, leaving the debtor with only direct possession of the property.
Once all or part of the debt is due, the debtor will be notified to pay the debt within 15 days. If the debt is not paid, the property remains with the creditor permanently, including changes to the property's registration.
The creditor will then promote the extrajudicial auction of the property within a maximum of thirty days, notifying the debtor extrajudicially of the date, time and place. The entire procedure for the repossession of the property by the creditor takes place out of court. Often, the first notification is mistaken for a simple extrajudicial notification, but it can have a serious consequence for the debtor: the loss of the property.
In order to take advantage of this contract, it is essential to be familiar with its tools and pitfalls, since in some cases the property can be auctioned off by third parties in less than 30 days after the first extrajudicial notification - all without the need for any legal action by the creditor.
