Heritage Listing of Private Property (Tombamento): Owner Obligations and the State’s Right of First Refusal

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Tombamento (heritage listing) protects the historical, artistic, or cultural value of a property, but it imposes a series of preservation duties on the owner without guaranteeing, by itself, any compensation. Knowing how far those duties go, when the government picks up the cost of the work, and how to challenge the listing is what separates the owner who loses money from the one who protects both the heritage and his or her own pocketbook.

What heritage listing is and which law governs it

To list a property means to recognize, through an administrative act, that it has cultural value worth preserving. Once the property is entered in one of the Tombo Books (the official heritage registers), it becomes part of the protected heritage and is subject to its own legal regime, which is stricter than the one that applies to an ordinary property.

The central law remains Decree-Law No. 25 of 1937, which the Constitution recognized as still in force. Article 216 of the Federal Constitution lists heritage listing among the tools for protecting Brazil’s cultural heritage, alongside inventories, registration, and expropriation. The Federal Government, the states, and the municipalities all have the power to list properties, which is why a single property can be protected at the federal, state, or municipal level.

Listing can be voluntary, when the owner requests it or agrees to it, or compulsory, when the government imposes it against the owner’s will. It is also divided into provisional listing, while the proceeding is pending, and definitive listing, after the property is entered in the Tombo Book. In both cases the restrictions already take effect, a point that often surprises people who receive the notice.

Duties of the owner of a listed property

The most significant effect of listing is the limit it places on property rights. The owner is still the owner and can use, lease, and even sell the property, but loses the freedom to alter it as he or she sees fit. Article 17 of Decree-Law No. 25/1937 prohibits destroying, demolishing, or mutilating a listed property, and also bars repairing, restoring, or painting it without prior authorization from the heritage protection agency, under penalty of a fine.

The owner also has an affirmative duty to maintain the property. It is not enough to avoid damaging it: the building must be kept in a state of preservation, so that neglect does not produce the same result as demolition. Renovations, replacement of window and door frames, changes to the façade, and even the color of the exterior paint now require technical approval from the competent agency.

The restrictions also reach the neighborhood. The law prohibits construction near a listed property that would obstruct its visibility, and it bans posters or advertisements that compromise the protected setting. For that reason, neighbors of listed properties must follow additional urban planning rules, even if their own buildings are not protected.

Another duty that is often overlooked is the duty to give notice. If the owner intends to sell the property, transfer it, or even move listed objects, he or she must notify the heritage protection agency. Failing to meet these duties exposes the owner to fines, to an obligation to redo unauthorized work, and, in serious cases, to liability for damage to the cultural heritage.

It is worth noting that listing attaches to the property, not to the person. Anyone who buys an already listed property takes on all of these obligations, which is why checking for a listing should be part of any due diligence when acquiring old properties or those with architectural value.

The Federal Government, the states, and the municipalities all have the power to list properties, which is why a single property can be protected at the federal, state, or municipal level.

When the government must pay for upkeep

The general rule is that upkeep costs fall on the owner, as a natural consequence of the duty to maintain the property. This point causes legitimate frustration: many owners do not have the resources to pay for restoration work, especially on large, old buildings.

Decree-Law No. 25/1937 offers a significant safety valve. Under Article 19, an owner who lacks the means to carry out necessary maintenance and repairs must formally notify the heritage protection agency that he or she cannot afford them. Once that notice is given, a duty arises for the government.

After receiving the notice, the public agency has a deadline to choose between two alternatives: have the work done at its own expense, or cancel the listing and release the property from the restrictions. What the law does not allow is inaction. The government cannot demand upkeep, refuse to pay for it, and at the same time keep the property bound to the protective regime without taking any step.

In practice, this mechanism is an important bargaining tool for an owner without resources. The formal notice documents the financial inability to pay, shifts the burden of decision to the government, and creates a basis for a later lawsuit if the agency simply ignores the request. For that reason, the notice should be in writing, with proof of receipt and a technical description of the necessary work.

Compensation, the right of first refusal, and what changed

The most common question is whether listing creates a right to compensation. In most cases, the answer is no. Listing is treated as a general administrative limitation, one that merely conditions the use of property on its social and cultural function. Because it does not take away the property or its economic use, it does not, by itself, create a duty to compensate.

Compensation becomes available in a different situation: when the restriction is so severe that it completely drains the property of its economic value, preventing any useful use. In that scenario, the case law recognizes what is called desapropriação indireta (indirect expropriation, similar to a de facto taking), in which the government, without issuing a formal expropriation decree, effectively takes the value of the property for itself. Once the loss of all economic value and the specific harm are proven, the way is open for compensation.

The point that most confuses owners, and even professionals, is the right of first refusal. Decree-Law No. 25/1937 provided that, when selling a listed property, the owner had to offer it first to the Federal Government, the state, and the municipality, which would have priority to buy it at the same price. That right of first refusal was expressly repealed by the 2015 Code of Civil Procedure (Law No. 13.105/2015).

The consequence is straightforward: today the owner of a listed property can sell it to anyone, at whatever price is agreed, without first offering it to the government. All that remains is the duty to notify the heritage protection agency of the transfer, for record-keeping purposes, with no government priority to buy. Relying on old contract templates that still mention this right of first refusal is a technical error that can delay deals.

How to challenge a listing

Compulsory listing does not come as a complete surprise. The owner is notified and has a deadline to respond before the listing becomes definitive. Under the procedure in Decree-Law No. 25/1937, the owner has fifteen days to agree to the listing or file an objection, presenting reasons and evidence against the proposed protection.

The objection is decided within the administrative process, usually by a technical council of the heritage protection agency. This is the stage at which the real existence of cultural value, any defects of jurisdiction, and the proportionality of the restrictions are debated. A well-supported defense, backed by expert reports and opinions, can prevent the listing or at least define precisely what will be protected.

Once the administrative route is exhausted, or when there is an obvious illegality, judicial review becomes available. The annulment action (ação anulatória) is the proper tool for contesting the merits of the act, arguing that there is no cultural value, that the agency misused its authority, or that due process was not followed. When a clear and undisputed right has been violated by an illegal act or abuse of power, the mandado de segurança (a constitutional writ that protects clear and undisputed rights) offers a faster route, with the possibility of a preliminary injunction to suspend immediate effects.

Deadlines deserve extra attention. The mandado de segurança has a short, strict filing deadline, counted from the date you learn of the act. Missing it does not bar the annulment action, but it narrows your strategic options. For that reason, when the owner receives any listing notice, he or she should seek professional advice immediately, rather than waiting for the definitive listing before reacting.

Frequently Asked Questions

Does heritage listing prevent me from selling the property?

No. The owner of a listed property can sell it normally, to any buyer and at any price agreed. Since the 2015 Code of Civil Procedure repealed the former right of first refusal, there is no longer an obligation to offer the property to the government first. All that remains is the duty to notify the heritage protection agency of the transfer. The buyer, in turn, takes on all the preservation restrictions that attach to the property.

Who pays for restoration work on a listed property?

As a rule, the owner does, as part of the duty to maintain the property. However, if the owner lacks the financial means to pay for the necessary work, he or she must formally notify the heritage protection agency of that inability. From there, the government must choose between doing the work at its own expense or canceling the listing. If the government fails to act on that notice, its inaction can be challenged in court.

Is it possible to overturn a listing that has already been decreed?

Yes, although it is not simple. During the proceeding, an administrative objection may be filed within fifteen days after notification. Afterward, the act can be challenged through an annulment action, when you argue that there is no cultural value or a defect of legality, or through a mandado de segurança, when there is an obvious illegality and the filing deadline has not passed. Cancellation can also occur when the government refuses to pay for the upkeep of a property whose owner has shown that he or she lacks the resources.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.