Uniube+ Direito das Coisas - Semana 12.1

Summary

This video lesson provides an in-depth exploration of the concept of mortgage, focusing primarily on its material aspect, as outlined in the Civil Code. The speaker explains that a mortgage is a real right of guarantee for payment, where immovable property is used to secure a debt without the debtor losing possession. It is essential that mortgages be registered with the property registry office. The lesson also touches on various assets that can be mortgaged, such as land, houses, and even natural resources used in construction. The video delves into the practical implications of how mortgages work in the real world, emphasizing their complex nature and how they are applied to various types of properties and resources.

Takeaways

• 😀 Hipoteca (mortgage) is a real right of guarantee, alongside penhor (pledge) and anticrese (another form of guarantee). Unlike penhor, the debtor retains possession of the property in a mortgage.
• 😀 Mortgages are governed by two primary legal texts in Brazil: the Civil Code (Código Civil) for material aspects and Law 6015/1973 for procedural aspects related to registration.
• 😀 To be valid, a mortgage must be registered in the real estate registry (Cartório de Registro de Imóveis) to ensure the property's status is legally recognized.
• 😀 Mortgages cover not just the land but also any improvements or constructions made on the property, even if these are not reflected in the registry.
• 😀 Real rights (ônus reais) attached to a property do not disappear when the property is sold. Buyers should request a certificate of encumbrances to check for existing mortgages.
• 😀 Rights such as enfiteuse (land tenure) and rights of direct and useful domain can also be subject to mortgage, though they are discussed in more detail in other parts of property law.
• 😀 Railway properties, including stations and equipment, are recognized as valid subjects of mortgage, a position affirmed after extensive legal debate over a century.
• 😀 Only certain natural resources used in construction (like sand, gravel, and rocks) can be mortgaged, while government-owned resources cannot be subject to such agreements.
• 😀 Ships and aircraft have a mixed legal nature, as they are categorized as both movable and immovable property. Despite their mobility, they can be mortgaged.
• 😀 A new legal development in 2023 introduced provisional possession in expropriation cases as a real right, which can also be given in mortgage, though this is more relevant to administrative law.

Q & A

What is the primary focus of the class in the transcript?

The primary focus of the class is on the study of 'hipoteca' (mortgage), a legal institute more commonly used than 'penhor' (pledge), particularly in relation to property rights and guarantees.

What is 'hipoteca' and how does it function as a guarantee?

A 'hipoteca' is a real right of guarantee that involves immovable property, ensuring the payment of a debt without the debtor losing possession of the property. It secures a debt by linking it to the property while the debtor retains use and possession of the property.

What are the main legal texts governing the material and procedural aspects of 'hipoteca'?

The material aspects of 'hipoteca' are governed by the Civil Code, while the procedural aspects, including the registration and effect of the mortgage, are addressed in the Law of Public Registries (Law 6015 of 1973).

What does the registration of 'hipoteca' in a registry entail?

The registration of 'hipoteca' in the property registry is necessary for it to be legally valid and enforceable. This process ensures that the property in question is legally linked to the mortgage and can be used as collateral for a debt.

How does 'hipoteca' apply when a property is improved after it is mortgaged?

In cases where a property initially mortgaged as land is later improved with a house or other structures, the mortgage applies to both the land and the new improvements. The mortgage extends to all enhancements made to the property, regardless of what is recorded in the property registry.

How do real rights, such as 'hipoteca', relate to the transfer of property?

When a property with a real right (like a mortgage) is transferred, the new owner assumes the property with its encumbrances. A certificate of encumbrance is required to ensure that the buyer is aware of any real rights attached to the property.

Can assets other than real estate be used for 'hipoteca'?

Yes, besides immovable properties, certain accessories and movable goods within the property, such as furniture and appliances, can also be mortgaged. Additionally, specific natural resources like sand and gravel can be used for mortgages if they are intended for construction purposes.

What is the status of mortgages involving railways or infrastructure?

Railways, including their stations and the movable assets within them, can be mortgaged. This includes items like telegraphs and other equipment within railway stations, even though railways are often thought of as purely immovable infrastructure.

What does the concept of 'nature mixed' mean in relation to ships and aircraft?

The 'nature mixed' concept refers to the classification of ships and aircraft as objects that are not strictly movable or immovable. Despite their mobility, ships and aircraft can be mortgaged, leading to a blended categorization in legal terms.

What are some other legal rights that can be mortgaged according to the script?

Besides real property, legal rights like 'uso especial para fins de moradia' (special use for housing purposes), 'direito real de uso' (real right of use), and 'emissão provisória na posse' (temporary possession issuance) can also be subject to mortgages, although some of these are more relevant to administrative law or specific contexts like expropriation.