Bruno Costa, Gabriela Caetano Andrade and Guilherme Alcântara Nunes
The maintenance of a real estate property generates numerous expenses to the owner, from taxes, condominium expenses, garbage collection fees to renovations / construction works eventually necessary. Given that, it is not uncommon for properties to become financially unviable for the owner.
Even when not used in the economic activities developed by the owner, the properties generate expenses. If it does not present financial advantages to the owner, the natural course is to seek the disposal of the property, but in practice, often the disposal becomes impossible or unfeasible.
The reasons vary and include the existence of tax debts that drive away potential buyers, costs for regularization of the property or even lack of liquidity, as is the case of areas that do not arouse economic interest in third parties due to the location of the property or its state of conservation..
If it is not possible to dispose it, expenses continue to accumulate (especially those related to taxes) and may generate expenses with collection lawsuits or even the filing of a tax foreclosure against the taxpayer, owner of the property.
The Civil Code presents a viable alternative to the owner: the waiver of ownership. The measure is established in item II of the Article 1,275 of the Civil Code, composing the list of situations that cause the loss of property.
It is a unilateral legal act, in which the renouncing owner formally and explicitly declares his intention to give up the right of ownership over the property. No approval is required for the act, whether from public agencies or individuals. There are also less conservative understandings that argue that the approval is not necessary even in the cases of condominium buildings.[1]
From a practical point of view, the renunciation is made through the drafting of public deeds. It is necessary to check if there is any particularity in the rules of the internal affairs of justice of each locality, but, in general, the followed premise is that, if the value of the property is greater than 30 times the minimum wage in force in the country, the act should be practiced by the execution a public deed, taking into account the provisions of the Article 108 of the Civil Code.
The Civil Code also determines that the waiver is subordinated to the registration of the act in the respective service of real estate registry, with consequent cancellation of its enrollment.[2] If the properties are irregular from a registral point of view in the registry office, therefore, the waiver cannot be executed due to lack of conditions to cancel the enrollment.
Before the registration of the waiver in the enrollment of the property, the renouncing owner remains with the property in its patrimonial sphere, being even possible to disconstitute the act of renounce, keeping the property to himself or alienating it to third parties.
Another important point is that the act of renunciation can never be executed in favor of third parties, otherwise a donation may be characterized.
Also from a practical point of view, after the formalization of the waiver on the respective enrollment, the property becomes a res nullius (no one's thing) and therefore becomes a vacant property. The government can thus collect it or incorporate it into its assets. After three years of collection, if it is unoccupied, the property will pass to the domain of the municipality, if urban, or Federal Government, if rural.[3]
With regard to debts of a nature propter rem, such as IPTU and ITR, the renouncing owner remains responsible for the payment of debts whose generating fact is prior to the registration of the waiver on the respective enrollment. There should be no posting of debts after the waiver, since they are linked to the property, which no longer exists. In the event that they are constituted, they may not be charged to the renouncing owner.
Although there are few judged lawsuits concerning the waiver of ownership, it is a fully viable measure for the owner who no longer wishes or is no longer able to own a property and bear all the expenses inherent to the property.
[1] "The waiver is provided in the article 1275, II, of the Civil Code, only subordinated to the registry and nothing, absolutely nothing, imposes approval of the other condominium building occupants for its validity". Court of Justice of the State of São Paulo, Appeal 1016033-15.2018.8.26.0100, tried on February 27, 2019.
[2] Art. 1,275. Single paragraph. In the case of items I and II, the effects of the loss of ownership shall be subject to the Registration of the transmissive title or the renouncing act in the Real Estate Registry.
[3] Art. 1,276. The urban property that the owner abandons, with the intention of no longer keeping it in his heritage, and that if it is not in the possession of another, may be collected, as a vacant property, and be transferred, three years later, to the Municipality or to the Federal District, if found in the respective circumscriptions.
- 1 - The property located in the rural area, abandoned in the same circumstances, may be collected, as a vacant property, and be transferred, three years later, to the Federal Government, wherever it is located.
- 2 - The intention referred to in this article shall be presumed in an absolute way, when, once the acts of possession have ceased, the owner ceases to satisfy the tax expenses.
