Property Trust: Legal Aspects, Concepts, and Requirements
Property Trust
1. Relevant Legislation: Law 4.728/65 and Articles 1361 to 1368 of the Civil Code.
2. Concept: Property trust is the transfer that a debtor makes to a creditor, granting resolvable ownership of movable property, in order to secure payment of a debt related to financing the acquisition of the property.
3. Parties Involved:
3.1. Trustor: The direct debtor and owner of the property.
3.2. Fiduciary: The creditor who receives the property in trust, ensuring compliance with the contract.
4. Characteristics:
4.1. Temporality: The creditor does not intend to keep the property, but only takes it as collateral for loan payment.
4.2. Bipartition of Ownership: The creditor, as the property owner, has indirect possession transmitted by the contract, while the debtor has direct ownership of the property.
5. Contract Requirements:
5.1. The total debt or its estimate, so both parties are aware of the amount financed.
5.2. The term, or time of payment.
5.3. The interest rate and other charges.
5.4. The description of the property, with the elements necessary for identification.
5.5. Public or private form, registered in the Registry of Deeds and Documents of the debtor’s domicile.
5.5.1. In the case of vehicles, registration is done in the relevant office with a lien notation on the trustee’s certificate.
6. Rights and Duties of the Trustor (Debtor):
6.1. Exercise direct ownership of the property and defend it through possessory interdicts.
6.2. Use the property as intended to preserve its security.
6.3. Employ the necessary care in the custody of the property.
6.4. Be liable as a depositary for any damage caused to the creditor.
6.5. Offer the right to the property in payment, with the creditor’s consent.
7. Rights and Fiduciary Duties of the Creditor:
7.1. Respect the debtor’s possession to meet their obligations.
7.2. Prevent the insertion of a forfeiture agreement, where the creditor would keep the property if the debt is not settled.
7.3. Promote proof of residence before moving to legal action through the Registry of Deeds and Documents or protest, at their discretion.
7.4. Alienate the property judicially or extra-judicially (CC, art. 1364).
Payment of Debt by a Third Party: Subjective active subrogation occurs, with a change of creditor. The debt, in turn, will not become extinct because, with the subrogation, there will be no change of the creditor; the debtor remains bound by the obligation.
8. Alienation of Fiduciary Property:
8.1. Legal Basis: Law 9.514/97
8.2. Concept: A legal transaction whereby the debtor, or trustor, transfers ownership of resolvable real estate to the creditor, or trustee, within the scope of warranty contracts (Art. 22).
8.3. Subject: Any person or entity.
8.4. Formalization: Registration of the contract (notarial deed purpose) in the relevant CRI jurisdiction.
8.5. Contract Requirements: Articles 24, 26, and 36 of Law 9.514/97
8.5.1. Party Qualification
8.5.2. Witness Qualification
8.5.3. Recognition of Firms
8.5.4. Tax Certificates
8.5.5. ITBI Collection
8.5.6. Adjustment Clause
8.5.7. Grace Period for Subpoena
8.5.8. Provision for Public Auction
8.6. Trustor Default:
8.6.1. Notification for purging within 15 days.
8.6.2. Failure to purge implies the consolidation of ownership in the hands of the trustee (application + ITBI payment).
8.7. Trustor Insolvency: Trust is secured for the recovery of property disposed of by trustees. An extrajudicial sale allows the trust to pay out via auction (Art. 32).
8.8. Reintegration of Ownership:
8.8.1. Eviction in 60 days, granted from the outset due to the robbery, since the property was consolidated on behalf of the applicant (Art. 30).