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Guilherme Zauli, coordinator of the real estate area of Tortoro, Madureira & Ragazzi Advogados

It is known that when developing a certain real estate project, developers responsible for implementing such project seek funds from financial institutions, which in turn, require a certain kind of security to grant these amounts.

By assuring a greater autonomy to the developers, since such a lien does not prevent the sale of the units to be traded, the mortgage became one of the main forms of security for financing most of the real estate projects delivered in Brazil.

However, taking into consideration the massive use of mortgage, litigation was inevitable.

Among the many issues brought to Court, the main one was the discussion on the validity of the mortgage signed between the construction company and the financial agent to the detriment of the third buyer of a certain unit.

There were so many litigations that, aiming at the uniformity of the understanding adopted by courts, the Superior Court of Justice edited Precedent No. 308, consolidating the position that the mortgage, before or after the execution of the contract for deed signed between the construction company and the financial agent, has no effectiveness in relation to the buyer of the property.

Without a shadow of a doubt, this understanding aims to protect the purchaser of the property that, according to the Superior Court of Justice, could not be held responsible for the debt of the construction company to the institution responsible for financing the project; the purchaser would only be held responsible for the settlement of the price stipulated for acquisition of the property.

In order to shed a light on the consequences of such understanding, it is necessary to segment the analysis of the text summarized by the Superior Court of Justice into parts.

Regarding the mortgages took out after the sales agreement of the property, despite the ownership of the property legally remaining in the name of the developer until

the property registration is made with the competent Registry of Deeds, the understanding adopted by courts could not be different, since at the time of acquisition of the property, the negotiation was based on a property that has no burden.

Furthermore, the good faith required in commercial relations represents an impediment factor that, after selling a certain unit, the developer may offer the same property as a collateral to a third party.

However, as explained above, the understanding adopted by courts was not limited to mortgages took out after the acquisition of the property by a third party in good faith.

The STJ decided that mortgages took out by the construction company and the financial agent, prior to the act of sale to third parties, even if properly recorded in the real estate’s registration, are also not effective in relation to the buyer of the property.

With this understanding, even if indirectly, the mortgage security ended up being removed from the list of security interests and transported to the segment of personal guarantees, since it is only binding upon the developer and without security in any specific asset.

Among the main characteristics of security interests lies the fact that, after observing the formal requirements, it falls on a certain asset, producing an erga omnes effect.

In relation to personal guarantees, as suggested by the name itself, the executed agreement finds no support in a certain asset, but in the person who assumed the obligation instead.

Contrary to the scenario in which property is negotiated free of charge, with the provision of a mortgage security prior to the sale of the property to a third party, there is nothing to say about the lack of knowledge about the situation of the property.

In this circumstance, it is perfectly possible for the buyer and the developed to negotiate, since they are aware of the conditions and risks of the business, they can stipulate different securities or even offset any risks with the price reduction.

However, in relation to the financial agent, the summarized text only brings insecurity regarding the validity of the security previously agreed.

It is no secret that a critical factor considered to compose the credit cost is tied to the business risk.

In this way, by reducing the receipt security freely agreed between the developer and the financial agent, the Judicial Branch contributes to the creation of an event of uncertainty, which consequently leads to an increase in the credit cost.

Therefore, if the cost to obtain credit by virtue of business risks is higher, the final price for the acquisition of the property will therefore be affected; thus, all consumers shall bear the costs to protect those who acquired such property –even though aware of the existence of a previous lien recorded in the registration of the property –, as they are aware that the understanding adopted by courts is favorable to them.