The Federal Supreme Court (STF) will decide whether it is mandatory to require a public deed in property purchase and sale contracts with chattel mortgages outside the Real Estate Financing System (SFI) and the Housing Finance System (SFH).
The case began to be analyzed in a virtual trial session of the Second Panel of the Court, which began on Friday (13), but was suspended following a request from Minister Luiz Fux. There is no deadline for resuming the trial.
The case involves the application of Law 9,514 of 1997, known as the Real Estate Financing System Law (SFI). The standard states that transactions can be carried out by public deed or private instrument with the effects of public deed.
However, in 2024, resolutions from the National Council of Justice (CNJ) restricted the use of the private instrument only by entities authorized to operate in the SFI.
When analyzing the issue, the case’s rapporteur, minister Gilmar Mendes, decided that the law must be maintained.
“It is not up to the property registry officer, in the exercise and within the limits of his important function, to deny registration to atypical contracts with fiduciary alienation signed by private individuals, when the agreement presents all the requirements set out by law for its validity”, wrote the minister.
After the rapporteur’s vote, minister Dias Toffoli followed Mendes’ vote, and Luiz Fux asked for a view of the process.
Consumer
In December last year, the National Consumer Secretariat, linked to the Ministry of Justice, issued an opinion so that public deeds could be valued. The opinion was requested by deputy Kiko Celeguim (PT-SP).
“The public deed is not reduced to bureaucratic formality, but performs an essential public function of legal clarification, ensuring the consumer qualified information, adequate understanding of the contractual content, prior control of abusive clauses and verification of the legal regularity of the business, reducing the risk of predatory practices”, stated Senacon.
