Public Deed and Real Property Registration: Key Differences

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

A public deed and property registration are two separate, complementary acts. The deed formalizes the transaction, while registration is what actually transfers ownership of the real estate.

Public deed: formalizing the real estate transaction

A public deed (escritura pública) is a document drawn up by a notary public (tabelião de notas) to formalize the parties’ agreement in a real estate transaction. When a property is worth more than thirty times the highest minimum wage in force in the country, Article 108 of the Civil Code makes a public deed mandatory. It is an essential requirement for the transaction to be valid.

When the notary prepares the deed, he or she acts in a public capacity and gives the act public faith. The notary also verifies the parties’ identities, the legitimacy of the transaction, the absence of legal impediments, and the document’s compliance with current law. This review includes checking clearance certificates for debts, lawsuits, and liens (ônus reais) affecting the property.

You are free to choose the notary’s office. The parties may select any notarial office in the country to prepare the deed, regardless of where the property is located. Notary fees (emolumentos) are set by state law and vary according to the value of the transaction and the state where the act is performed.

A public deed can be used for many types of real estate transactions, such as sale and purchase, donation, exchange, payment in kind (dação em pagamento), and creation of a usufruct. Each type has its own specific requirements, which the notary and the parties must follow to ensure the notarial act is fully valid.

Real estate registration: the actual transfer of ownership

Registering the deed at the real estate registry office is the act that actually transfers ownership of the property. In Brazil, the governing principle is that “whoever does not register is not the owner,” as established in Article 1.245 of the Civil Code. Until the deed is registered, the buyer has only a personal right against the seller, which has no effect against third parties.

The Real Estate Registrar (Oficial de Registro de Imóveis) examines the legality of the document presented, the property’s chain of title (the sequence of owners), any liens or encumbrances, and compliance with land subdivision and urban zoning rules. This registry review is an essential function that provides legal certainty to real estate transactions carried out in Brazil.

The property record (matrícula) is the document that gathers the entire history of the property, including its description, location, dimensions, previous owners, liens, mortgages, attachments, and other relevant entries. Each property has a single, individual matrícula at the real estate registry office for the district where the property is located.

A public deed can be used for many types of real estate transactions, such as sale and purchase, donation, exchange, payment in kind (dação em pagamento), and creation of a usufruct.

The principle of registry continuity requires that acts be registered in logical, chronological order, forming an unbroken chain of titles. A sale cannot be registered if the seller does not appear as the owner in the matrícula. This protects the security and reliability of the Brazilian real estate registry system, which is used nationwide.

Required documents and costs

To prepare a public deed of sale and purchase, the parties must provide personal documents (RG, the national identity card; CPF, Brazil’s individual taxpayer registry number; and a marriage or birth certificate), an up-to-date property record certificate, tax and labor debt clearance certificates, proof of payment of the ITBI (Real Estate Transfer Tax), and the payment slip for the laudêmio (a fee owed to the federal government, when applicable to properties on navy land, or terreno de marinha).

The costs of a real estate transaction include the notary’s fees for preparing the deed, the real estate registry office’s fees for registering the title, the ITBI (a municipal tax whose rate ranges from 2% to 3% of the property’s value in most municipalities), and, in some cases, the laudêmio and an intervention fee when the property is located on land belonging to the federal government.

The up-to-date property record certificate is the most important document for assessing whether the transaction is safe. It shows whether the property carries liens such as mortgages, attachments, seizures, court-ordered unavailability of assets, or restrictions that could compromise the transfer of ownership. The certificate should be obtained as close as possible to the date of the deed so that it reflects the property’s current status.

Special situations and legal exceptions

A public deed is not required for contracts under the Housing Finance System (SFH), pursuant to Law No. 4.380/64. In those cases, the private financing contract, which has the force of a public deed, is a valid title for registration at the real estate registry office. This simplifies the procedure and lowers the transaction costs for people buying a home to live in.

Extrajudicial adverse possession (usucapião extrajudicial), provided for in Article 216-A of Law No. 6.015/73, allows a person to acquire ownership directly through the real estate registry office, without a public deed or a lawsuit. This procedure, introduced by the 2015 Code of Civil Procedure, is conducted by the registrar and requires the consent of all interested parties and neighboring owners.

Properties acquired by adjudication in court proceedings (enforcement actions, probate, divorce) are transferred by an adjudication letter (carta de adjudicação) or a formal partition judgment (formal de partilha) issued by the judge, which takes the place of the public deed for registration purposes. A court-issued title has the same effect as a deed in transferring ownership before the real estate registry office.

Owning property without a deed or registration is common in Brazil, especially in peripheral urban areas and rural areas. Land title regularization programs (REURB) and adverse possession procedures give long-time possessors a way to obtain formal title to their properties with full legal certainty.

Consequences of not registering

A buyer who has only the deed, without registration, faces significant risks. The seller continues to appear as the owner in the matrícula and can sell the same property to someone else. If that person registers first, he or she becomes the legitimate owner. Although this scenario constitutes the crime of fraud (estelionato), it still harms the buyer who did not register the deed in time.

Without registration, the buyer also cannot offer the property as collateral for financing, obtain permits and licenses from the city, or fully exercise an owner’s rights, such as defending possession against third parties who may challenge the buyer’s title to a property acquired without proper registration.

To protect any real estate transaction, it is essential to have guidance from a specialized attorney who can review all the documentation, identify risks, and follow the process from negotiation through the actual registration of the transfer at the competent real estate registry office.

Frequently Asked Questions

What is the difference between a public deed and a private contract?

A public deed is prepared by a notary public, who gives the document public faith and verifies that the act is lawful. A private contract is signed directly by the parties, without any notary involved. For properties worth more than thirty minimum wages, the law requires a public deed. A private contract can replace the deed only in specific situations provided by law, such as SFH financing.

How much does it cost to register a property at the registry office?

Costs vary depending on the state and the value of the property. Real estate registry office fees are set by state law and calculated in proportion to the value of the transaction. In addition to registry fees, you will pay the ITBI (generally between 2% and 3% of the property’s value) and the notary’s fees for the deed. On average, total costs come to between 4% and 6% of the property’s value.

Can I buy a property with just a contrato de gaveta?

A contrato de gaveta (a “drawer contract,” meaning a private agreement with no deed and no registration) is valid between the parties, but it does not transfer ownership as against third parties. The buyer is vulnerable to fraud because the seller remains the owner in the matrícula and can sell the property again. The property can also be seized to pay the seller’s debts. Regularizing the purchase with a deed and registration is essential for full legal protection of the buyer.

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