Real estate transactions on marine land: what precautions to take

Summary

The transcript discusses important aspects of real estate transactions involving maritime land (terrenos de marinha) in Brazil. Key topics include the payment of the Laudênio fee for transferring property, the responsibilities of sellers, the need for a certificate of transfer authorization (CAT), and the process of regularizing ownership. The discussion also covers nuances like the impact of debts on property transfer, the concept of domain useful rights (aforamento), and the possibility of acquiring full ownership (remission of aforamento) to convert a property into private ownership. The content provides essential information for individuals dealing with such properties.

Takeaways

• 😀 It is essential to check if a property in a marine land area is registered with SPU (Secretariat of the Patrimony of the Union) and whether it has any pending fees or taxes before transferring it.
• 😀 Marine land properties pay annual fees, such as occupancy or ground rent fees, which must be up to date before the property can be transferred between private parties.
• 😀 The responsibility for paying the Laudênio tax (a patrimonial fee) for transferring a marine land property lies with the seller, unlike the ITBI tax, which is the buyer's responsibility.
• 😀 The Laudênio tax must be paid before the property can be transferred, and a 'CAT' (Certificate of Authorization for Transfer of Union Property) must be issued to complete the transaction.
• 😀 The CAT certificate is valid for 90 days and is a prerequisite for any public deed of sale of a Union property.
• 😀 Issues such as fiduciary alienation in marine land properties can complicate matters like usufruct, as seen in the example of a legal exam question involving a fiduciary mortgage on a marine land property.
• 😀 Laudênio tax only applies to onerous transactions between living individuals; it does not apply to transactions involving inheritance or gifts.
• 😀 When acquiring marine land, a person may first need to regularize the property through occupation, followed by entering an 'aforamento' (ground lease), and eventually applying to buy the land from the Union.
• 😀 After entering the aforamento regime (where the buyer has 'domínio útil' or usufruct of the land), the buyer can request the full transfer of ownership (17%) from the Union to make the property fully private.
• 😀 Once the full domain is acquired, the property is no longer subject to patrimonial taxes like Laudênio, and it becomes fully private, exempt from Union property regulations.

Q & A

What is the Laudênio tax and who is responsible for paying it?

The Laudênio tax is a fee imposed on the transfer of maritime land properties between individuals. The seller is responsible for paying this tax, unlike the ITBI (Imposto de Transmissão de Bens Imóveis), which is typically paid by the buyer.

How can one verify if a maritime land property is in good standing for transfer?

To verify if a maritime land property is in good standing, you should check the property’s registration with the SPU (Secretaria do Patrimônio da União). You can consult the property's records, including any potential debts for occupation or lease fees.

What is the purpose of the Certidão de Autorização de Transferência (CAT)?

The CAT (Certificate of Authorization for Property Transfer) is required for transferring ownership of a maritime property. After paying the Laudênio tax, this certificate must be obtained through the SPU portal. It is valid for 90 days and is necessary for the legal execution of any deed of sale.

Does the Laudênio tax apply to all types of property transfers?

No, the Laudênio tax only applies to onerous transactions, such as buying or selling a maritime land property. It does not apply to transfers due to inheritance or donations.

What steps must be followed to purchase full ownership of a maritime property?

To purchase full ownership of a maritime property, you typically start by regularizing the property through occupancy, then enter a lease agreement (aforamento), which grants the 'useful domain' of the property. The final step is to purchase the remaining portion of the property from the Union, thus acquiring full private ownership.

What is the regime of aforamento in maritime land transactions?

The regime of aforamento is a leasing arrangement for maritime land properties, where the buyer acquires the 'useful domain' (83% of the property). The buyer can later request to purchase the remaining 17% from the Union to gain full ownership.

What happens if a property has unpaid occupation or lease fees?

If a property has unpaid occupation or lease fees, it cannot be transferred between individuals. The property must be regularized and any outstanding debts must be settled for the transaction to proceed.

What legal considerations exist when attempting to establish usufruct on a maritime land property with fiduciary ownership?

In complex cases like establishing usufruct on a maritime land property under fiduciary ownership by a bank, legal analysis is needed. The case discussed in the script highlights the challenge of dealing with fiduciary ownership, where the bank’s consent and other specific legal steps may be required.

Can the Laudênio tax be avoided if a property is transferred through inheritance or donation?

Yes, the Laudênio tax does not apply to property transfers made through inheritance (succession) or donations. However, the transfer still requires the issuance of the CAT for legal formalities.

How long is the validity of the Certidão de Autorização de Transferência (CAT)?

The CAT is valid for 90 days from the date of issuance, and it is required for the legal execution of a sale deed for a maritime land property.