Fiduciary Transfer of Real Estate and the Waiver of the Public Deed Requirement
The fiduciary transfer of ownership is widely used as collateral in financing transactions. As a rule, this legal instrument gives creditors greater security and speed regarding debt repayment, streamlines loan approval and, by reducing the risk of the transaction, allows credit to be offered at better interest rates.
In the case of real estate, fiduciary transfer is governed by Law No. 9,514/1997 (the Fiduciary Transfer Law), which allows, under Article 38, contracts to be “executed by public deed or by private instrument with the effects of a public deed.”
In 2024, Brazil’s National Council of Justice (CNJ) published Provimento No. 172, adding a specific chapter on the fiduciary transfer of real estate to its National Code of Standards. That chapter established that contracts executed by private instrument would only have the effects of a public deed if entered into by entities belonging to the Housing Finance System (SFI). Under a restrictive interpretation, other private parties would have to formalize fiduciary transfer transactions through a public deed executed before a notary.
Subsequently, Provimentos 175/2024 and 177/2024 partially expanded the above-mentioned National Code of Standards, extending the permission to execute contracts by private instrument to entities belonging to the Housing Finance System (SFH) and other entities subject to regulation by the Securities and Exchange Commission (CVM) or the Central Bank of Brazil.
The requirement to formalize fiduciary transfers by public deed, as established by the CNJ in its National Code of Standards, would have raised the cost of real estate transactions, since public deeds represent an expense of between 0.8% and 2% of the property’s value, depending on the state.
In light of this, at the end of July 2026, in response to a request for measures (Pedido de Providências)¹ filed by the Federal Government, the CNJ’s Corregedoria (Internal Affairs Office) decided to eliminate the public deed requirement for fiduciary transfer contracts, adopting a broad interpretation of Article 38 of the Fiduciary Transfer Law.
Among the points raised by the Federal Government in its request were: (i) the financial impact of the requirement, such as increased costs in credit transactions; (ii) higher real estate financing costs for developers and land subdividers; (iii) the lack of equal treatment between entities belonging to the SFI and SFH and other private credit providers, which would encourage bank concentration to the detriment of greater competition, affecting housing supply and prices; (iv) longer timeframes for formalizing credit transactions; and (v) the creation of an artificial demand for public deeds, without legal basis, which would amount to an abuse of regulatory power.
Beyond the economic impact, the Corregedor Minister, Mauro Campbell Marques, cited a ruling by Justice Gilmar Mendes in Writ of Mandamus No. 39,930/DF², which concluded that, whether through a literal or a systemic and structural reading of the rule, the interpretation given by the CNJ — limiting the use of private instruments — cannot be sustained. The provision would be a clear exception to Article 108 of the Civil Code³, which requires a public deed for the validity of legal transactions involving real estate, except where the law provides otherwise.
Accordingly, the CNJ’s Corregedoria granted the Federal Government’s request and ordered that the National Code of Standards be revised to adopt the broader interpretation of Article 38 of the Fiduciary Transfer Law, so that any contracts on the matter are exempt from the public deed requirement.
However, the waiver of the public deed requirement does not remove the need to register the fiduciary transfer contract with the Real Estate Registry Office, so that the property is characterized as fiduciary ownership (Article 23 of the Fiduciary Transfer Law⁴).
Finally, the Corregedor Minister recommended that “real estate registrars should not refuse to accept, review, or register a private instrument with the effects of a public deed that meets the legal requirements, on the sole ground that none of the contracting parties belongs to the SFI, the SFH, or is subject to specific regulation.”
The revised interpretation of Article 38 of the Fiduciary Transfer Law tends to reduce costs and red tape, making credit faster and more accessible. It remains to be seen whether the guidance directed at real estate registrars will be promptly followed, or whether there will be resistance to its application, requiring interested parties to raise a formal challenge (raising doubts).
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- PP No. 0007122-54.2024.2.00.0000. CNJ. Justice Mauro Campbell Marques. Publication date: July 24, 2026.
- This refers to Writs of Mandamus (MS) No. 39,805/DF and 39,930/DF.
- Article 108. Unless the law provides otherwise, a public deed is essential to the validity of legal transactions aimed at the creation, transfer, modification, or waiver of real property rights over real estate worth more than thirty times the highest minimum wage in effect in the country.
- Article 23. Fiduciary ownership of real property is established by registering, with the competent Real Estate Registry Office, the contract that serves as its title.
