Security rights in REM

Regarded as ancillary obligations and often disregarded by the parties, security rights in REM are ancillary obligations to various contracts, and aim to guarantee the debtor’s compliance with the obligation. In other words, in the event that the main obligation is not fulfilled, the creditor may enforce the contractual guarantee.

Therefore, if at maturity, the obligation was not fulfilled, either because the debt was not repaid, the thing was not delivered, among others, the creditor has the possibility of excusing a certain thing within the debtor’s equity or a third guarantor for the redemption of an obligation.

Among the guarantees of contracts the most common are those called real guarantees, which are characterized by being opposable erga omnes, that is, it is valid before everyone.

Despite the fact that it seems simple and easily feasible, collateral does not allow the creditor to “take” / “take” the asset for himself. Article 1428 of the Civil Code1 expressly prohibits the imposition of a commission clause in the scope of contracts that provide for security rights, under the pretext of debtor protection and usury repression2, thus, it is important to pay attention that contracts with security rights must follow a specific procedure in case of default.

First of all, in order to have security in the granting of a security right, it is important that said security right is not only provided for in the contract signed between the parties, but also, following the rule of Article 1.227 of the Civil Code3, when it falls on real estate, the burden of the security right will be constituted only by the real estate registry, that is: the security right must be registered in the registration of the property.

Thus, when the default occurs, the assets, given as collateral and recorded as real encumbrances, will be able to be pledged and submitted to auction through judicial enforcement proceedings, when enforcement occurs through legal process

judicial, or extrajudicial, as in the case of fiduciary alienation that the execution may take place by specific procedure in a notary’s office.

Having overcome these introductory issues of collateral, we now expose the four collateral rights listed in the Civil Code: mortgage, pledge, anti-crisis and fiduciary property. Excluding fiduciary property-specifically governed by arts. 1.361 to 1.368 of the Civil Code, to the other three real rights the common precepts inserted in the general theory of guarantee rights apply (arts. 1.419 to 1.430 of the CC), let us see:

(i) the anticresis is the real right on someone else’s property over which the creditor owns it to perceive the fruits and impute them in the payment of the debt. The creditor will not be able to dispose of the property, since the anticrese falls on the fruits and not on the anticrese property;

(ii) already, the mortgage is the real right in which a property is linked to the payment of the debt, and the value of the property cannot be less than the value of the debt that it guarantees.

A curiosity with respect to the mortgage is that, is in process before the National Congress the bill 3096/2019, which establishes the reverse mortgage, institute that buyer is obliged to pay a lifetime monthly income to the elderly to ensure the right to, in the future, become owner of the mortgaged property, being used primarily for elderly people who want to live in the property, until the end of life, and receive proceeds from the bank, and upon death, the property becomes the property of the bank.

(iii) pledge is the real right that the creditor has over something movable that was delivered to him by the debtor or third party for the security of his credit; and by virtue of which he may withhold it until payment is verified or dispose of it in the absence of this.

In this case there is a right of retention of the thing pledged by the creditor, justified in the event that there are Expenses With thing, by way of compensation, if the expenses were not caused by his fault.

(iv) finally, fiduciary alienation is a real right of guarantee, provided for in law no. 9.514 / 97, as being a legal business by which the debtor-trustee alienates the property, as a scope of guarantee, to the creditor-trustee or holder of the resolvable property4.

Having the term of payment for debt expired and being the debtor in default, it must be constituted in default, to then consolidate the ownership of the property in the name of the trustee, then having the right to sell it at public auction, to, with the value obtained from the sale, satisfy your credit.

Leonardo Da Vinci

Lawyer, graduated in law, with emphasis on Business Law, from Universidade Presbiteriana Mackenzie (2012), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2012). Post-graduate and Specialist IN Business Law from the São Paulo School of Law of the Getúlio Vargas Foundation (2014), Master in political and Economic Law from the Mackenzie Presbyterian University (2017), author of books and articles, Lecturer, University professor and member of the São Paulo Lawyers Association (AASP). Founding partner of TM Associados.

Cindy Massesine Pimentel

Lawyer, graduated in law, with emphasis on public law, from Pontifícia Universidade Católica de Campinas (PUCCAMP -2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2019). Post-graduate in Notarial and registry law from the Renato Saraiva Teaching Complex (CERS), author of articles. Leader of the advisory department at TM Associados

1 Art. 1.428. The clause that authorizes the pledgee, anticretic or mortgage lender to keep the object of the guarantee is null and void if the debt is not paid at maturity.

2 usury, in its original sense, is excessive interest charged on a loan, in a certain amount.

3 Art. 1.227. The rights in REM over Real Estate constituted, or transmitted by acts between the living, are only acquired with the registration in the real estate registry office of the aforementioned titles (arts. 1.245 to 1.247), except for the cases expressed in this code.

4 Art. 22. Fiduciary alienation regulated by this law is the legal business by which the debtor, or trustee, with the scope of collateral, contracts the transfer to the creditor, or trustee, of the resolvable ownership of immovable thing.