Some useful guidelines to get you started on the Brazilian property ladder.It may be that your circumstances require other documents not mentioned. This is not legal advice and please remember the Agent is working for the seller.
Brazil offers foreign investor’s 100% freehold on property purchases and they are given the same rights as native Brazilian buyers. This means you will have title and ownership of the land and property. Many lawyers promote title insurance to protect the buyer.
The first thing that is required is a Brazilian tax number, known as a CPF (Cadastro de Pessoas Fisicas). For that you will need:
You can apply to the Receita Federal, Banco do Brasil or Caixa Economica. You will be told there and then how long you will have to wait for your card. Normally, its a few days to a month.
You can apply for the CPF in your own country by handing in the application form to the Brasilian Embassy or consulate.
If you find all this quite onerous then appoint a lawyer and give him power of attorney.
When purchasing a property certain documentation must be provided and not just that which the lawyer was able to find. Its worthwhile knowing what these documents are; so if you are paying a lawyer to do this work for you then you know what he should be providing.
Ask for sight of all the documentation in the possession of the seller. You may be given a “Escritura Publica” or “Contrato particular de aquisiçao do imovel”. They must have the name of the office ( Cartorio de Registro de imoveis) where the property was registered.
If this is not possible, then ask for all previous titles for an address of the aforementioned office. If none is forthcoming then you are entering into a dubious difficult business arrangement. The CRI is the only way to prove ownership of the property. There is a legal maxim “Quem nao registra, nao e´ dono” or “who doesn’t register isn’t the owner”.
Assuming the property is registered correctly you can then ask for a “Certidao vintenaria” which outlines the history of the property over the last twenty years. Not only will the name of the owner be confirmed but also any complications with the registering of ownership such as a mortgage (hipoteca) or seizure (penhora). If you discover that the aforementioned actions are outstanding then you should seriously seek out legal advice. One of the biggest problems when taking on someone else’s loan is that generally the bank rewrites the contract substantially in their favour.
The seller must have the legal capacity to sell the property in that he must be over 18 years of age and that he has the mental capacity to do so. The seller must be free of debt on the property; it may be that he can only sell a percentage part. If he attempts to sell all the property, he is committing “fraude contra credores” and the sale could be annulled. To avoid this complication you must seek a document from the Forum civil which states that the seller is free from any civil processes and actions and that his family have no claim on the property in any way, shape or form.
While you are there, you can ask for another certificate stating that the state and prefeitura don’t have any outstanding claims against the seller and the family.
You will need a certidao na justice trabalho to ensure that the seller is not being processed by a previous employee because the property may be seized to pay off the employees dues.
Additionaly a certidao negative de protesto ensures that no one else has a claim against the seller
A certidao sobre existencia de processes contra o vendedor will reveal if the Federal Government have any claims outstanding from unpaid taxes etc.
If the vendedor lives in one city and his home is in another then certificates must be sought in both cities.
This is provided by the Receita Federal declaring all taxes paid and that the RF don’t have any claim against the property. If married, the seller must provide a marriage certificate and consent from the married partner.
You will need this to establish whether or not the IPTU has been paid to the Prefeitura or in the case of ITR Imposta Terrritorial Rural go to the Instituto Nacional de Colonizaçao e Reforma Agraria INCRA.
In the case of the INSS, you must ensure you have this document. If the seller built the house but didn’t pay any employees insurance then you could become liable for the cost, with interest. At the time of writing, there was a very high maximum limit.
Seek legal advice if producing any of the documents is a problem for the seller. Be very wary of the estate agent who wants to palm you off with any old story in order to avoid producing any of the documents. Many of the documents can be down loaded from the internet, the cost to be borne by the seller. (As in many countries the estate agent is working for the seller and not for you, you need to have your own legal advice)
You should also have at least one set of complete drawings for the property, which show it as it is, not as it was. They should be signed and dated. If the seller is unable to provide drawings then the cost of drawings should be borne by him. Every property should also have an Habit-se which ensures legality and compliance of the construction. You will need to provide this document to any lending institution. Note that properties have been bought and sold without the Habit-se to unwary purchasers. The cost of compliance will eventually be borne by the seller.
O contrato de compromisso de compre e vende do imovel or contrato de promessa de compre e vende de imovel.
This is probably the most misused document in the sale of property. Its part in the puzzle is simple. It isn’t always possible to get all the information together immediately to conclude business. People need time to get money and documents together; the contract buys people time to do this.
To be legal the document must include the following information
All parties to the contract must sign it which includes buyer, seller (and husband/wife if married) dependent witnesses. It is then taken to the Cartorio de registro de imoveis to be registered. This is extremely important, as you will find out if the property has already been sold to another person. Note that the document can be registered in the Cartorio de notas.
There will be times when it is not possible to complete the contract. Usually it is because one party has not been able to raise the money; a loan has not been agreed or a house sale in the chain has not gone through. It could be because the search has revealed some discrepancy and voided the sale.
The main point being that when no party is at fault then each one can go their separate ways without harm or hindrance and most importantly the buyer with his deposit. The buyer is also entitled to interest. On paper this is fine but in real life, the seller and the estate agent usually believe they are entitled to your deposit. Prepare yourself for some hard negotiating.
The buyer is protected by the Codigo de Defesa do Consumidor.
When the above document has been registered at the Cartorio de Registro de
Imoveis then you are truly the “dono” or owner of the property. The buyer pays
the fee, which is based on a table in accordance with the value of the property.
On top of that, there is the “Imposto intervivos” (or ITBI) a tax on the sale which is again a percentage of the value.
The rule is the seller pays what he has negotiated with the agent, normally 5%.
Make sure that is what is stipulated in the Contrato de compre e vende or you could end up agreeing to pay for some of his work if the deal falls through.
All agents should be registered through the regional council of estate agents Or Conselho Regional de Corretores de Imoveis CRECI.
The above is not legal advice. It is in your interest to employ your own legal advisor and remember that the agent is working for the seller and not you so check all information yourself. Don’t let your dream home become a nightmare.