BRAZIL · OPINION
Key Facts
- The author Kizzy de Paula Mota, a Brazilian real estate lawyer, wrote this guest opinion for The Rio Times.
- The risk A listing price and a signing date do not show who may sell or what is owned.
- The rule Ownership between living persons generally passes when the title is registered, not when the contract is signed.
- The tax Brazil’s Superior Court of Justice (STJ) ruled on how the ITBI transfer tax base is valued (Repetitive Theme 1,113).
- What to do Settle the legal questions before the deposit leaves the buyer’s account.
A Brazilian property lawyer says overseas buyers should ask five legal questions before they pay any deposit.
A property listing can make a transaction look complete long before the law does. Overseas buyers are often shown a price, a floor plan and a proposed signing date.
Yet the decisive questions are rarely commercial. They concern the seller’s authority, the legal identity of the property, outstanding obligations and the steps needed to make a transfer effective against third parties.
Who Is Entitled to Sell?
A broker’s mandate is not proof of ownership. The buyer should compare the seller’s identity with the registered owner and establish whether a representative has valid, sufficient authority.
Depending on the facts, marital-property rules, corporate approvals or succession issues may affect the transaction. A passport and a signature do not resolve those questions.
What Does the Property Register Show?
Brazilian real estate is identified through its matrícula, the individual record kept by the competent real estate registry. It can disclose title history and registered encumbrances, but it should be read as part of a wider due-diligence exercise.
Article 54 of Law 13,097/2015 strengthens the legal significance of registry publicity, but only under the conditions and exceptions the statute sets out, which depend on the facts of each case. That protection should not be reduced to the misleading slogan that everything not written on the record is legally irrelevant.
When Does Ownership Pass?
Under Article 108 of Brazil’s Civil Code, a public deed is required for certain real estate transactions, depending on the value and the type of right involved; it is not universally required. Under Article 1,245, ownership of real property between living persons generally passes by registration of the title in the property registry, subject to the applicable legal framework.
A purchase agreement can create enforceable obligations without itself completing that transfer. Filing a title for registration may establish priority, but the filing stage should not be mistaken for final acceptance and registration.
Which Liabilities Survive the Price?
Condominium assessments, local property taxes, land-use restrictions and documentation costs may materially change the economics. Buyers should examine the allocation of liabilities and the property’s legal and physical status.
The municipal property transfer tax, ITBI, deserves particular scrutiny: in Repetitive Theme 1,113, Brazil’s Superior Court of Justice (STJ) held that the ITBI taxable base is the property’s market value under normal conditions, not the municipal property-tax (IPTU) base. The value declared by the taxpayer is presumed to match market value, and the municipality can set that presumption aside only through a regular administrative proceeding; it cannot fix the base in advance through a unilateral reference value.
The ruling concerns the ITBI taxable base and its evidentiary presumptions. It does not give a buyer an unrestricted right to set the value, and a related appeal is pending before the Supreme Federal Court (STF).
What If the Deal Cannot Be Registered?
This is a contractual question that deserves an answer before any deposit leaves the buyer’s account. The agreement should specify documentary conditions, payment milestones, remedies for defective title, refund provisions and responsibility for clearing obstacles.
An overseas remittance adds another layer of banking and compliance checks. It does not cure a defective property title.
Two Further Distinctions
Buying urban property in Brazil is not legally the same as acquiring rural land, for which special restrictions can apply to foreign buyers. Owning a Brazilian apartment does not, by itself, settle where the buyer is tax resident.
Tax residence is determined under the applicable domestic rules and, where relevant, tax treaty provisions. The two questions should be asked separately.
In plain English
A matrícula is the official record of one property, kept at a registry office. ITBI is the city tax that a buyer pays when a property changes hands.
What It Means for You
A transaction is not secure simply because the buyer can sign remotely. It is secure only when the documents, the allocation of risks and the registry process support the outcome the buyer believes is being purchased.
The most useful legal advice may arrive before the deposit, while the buyer still has the practical freedom to walk away. Ask who the registered owner is, what the matrícula shows today and what happens to the deposit if registration fails.
What Is Not Known
This text is general information from its author, not legal advice, and every purchase turns on its own facts. Laws and court rulings can change, so a buyer should confirm the current rules with a lawyer registered in Brazil.
How a registry reads a particular title, and how long registration takes, differs from case to case. A listing alone cannot answer either question.
Frequently Asked Questions
Is a signed purchase contract enough to own property in Brazil?
Generally no. Ownership between living persons usually passes only when the title is registered.
What is a matrícula?
It is the individual record of a property, kept by the competent real estate registry. It can show title history and registered encumbrances.
What is ITBI?
It is the municipal tax on property transfers. In Repetitive Theme 1,113, Brazil’s Superior Court of Justice (STJ) ruled on how its taxable base is set and on the presumption attached to the value the buyer declares.
Can a foreigner buy rural land in Brazil?
Rural land is treated differently from urban property. Special restrictions for foreign buyers apply under Law 5,709/1971.
About the author
Kizzy de Paula Mota is a Brazilian lawyer and founder of Mota Law, focusing on real estate, civil contracts and cross-border property matters. Her academic research at FGV Direito SP has addressed property, housing and social inequality.
Sources: Civil Code, Law 10,406/2002, Arts. 108 and 1,245; Public Registries Law 6,015/1973; Law 13,097/2015, Art. 54; Superior Court of Justice (STJ), Repetitive Theme 1,113; Law 5,709/1971 on rural land. Opinion by the named author; submitted for first publication in The Rio Times.
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