The National Council of Justice (CNJ) judged, on August 8, 2023, an administrative procedure regarding an article of the provision of the Court of Justice of Minas Gerais (TJMG) that deals with the procedure for the constitution of fiduciary alienations of real estate in Minas Gerais.
In a brief context, Joint Provision 93/2020 of the TJMG (Provision 93), regulated the execution of fiduciary alienation and limited the constitution by private instrument to the entities of the Real Estate Financing System (SFI), credit unions or real estate consortium administrator.[1]
This provision does not directly follow federal law on fiduciary alienation. Law 9,514/97, which provides for the SFI and instituted the fiduciary alienation of immovable property, in its article 22, paragraph 1, expressly allows individuals or legal entities, regardless of whether they operate in the SFI, to contract the fiduciary alienation.
The interpretation of the TJMG, however, is not followed by most of the country's courts of justice, whose regulations allow contracting by private instrument, without limiting such prerogative to the entities operating in the SFI. In this sense, by way of example, the Court of Justice of the State of São Paulo (TJ-SP) provides on the subject as follows:
Article 229 - The acts and contracts referred to in Law No. 9,514/1997, or resulting from its application, even those aimed at the constitution, transfer, modification or waiver of rights in rem over real estate, may be executed by public deed or by private instrument with the effects of a public deed.
In line with the interpretation of the TJMG, which limits the constitution of fiduciary alienation by private instrument to the entities operating in the SFI, only the Courts of Justice of the State of Bahia (TJBA), the State of Pará (TJPA), the State of Maranhão (TJMA), and the State of Paraíba (TJPB) impose a similar restriction.
Evolution of the TJMG regulation on the subject
When analyzing the wording of the provisions that dealt with the subject in the previous provisions of the General Council of Justice of Minas Gerais (CGJMG), it is verified that, at a certain moment, there was a change in the understanding about the imposition of limitation.
In 2013, Provision 260 of the CGJMG was regulated in a similar way to Provision 93, that is, limiting the constitution of fiduciary alienation through a private instrument to the entities operating in the SFI. However, in 2015 the CGJMG, pursuant to provision 299, removed the limitation from the wording and began to regulate the subject as follows:
"Art. 852. Acts and contracts relating to the fiduciary disposal of real estate and related businesses may be executed by public deed or private instrument, pursuant to article 38 of Law No. 9,514, of November 20, 1997."
This rule was in force for two years, until in 2017 the CGJMG resumed the wording that limits the use of the private instrument for the contracting of the fiduciary alienation. This regulation remained in force until the present day and has now been corroborated by the CNJ.
Competence of the CNJ
The CNJ is an organ of the Judiciary provided for in the Federal Constitution, which was established by Constitutional Amendment 45/04. Its 15 members are elected for a 2-year term, including ministers of the superior courts, judges of federal courts, members of the public prosecutor's office, as well as lawyers and citizens, as provided for in Article 103-B of the Constitution.
In the discussion in evidence, the CNJ is provoked to interfere in the case based on its competencies, which at the same time determines that the CNJ ensures the autonomy of the Judiciary and the legality of the administrative acts practiced by the organs of the Judiciary.[2]
Thus, in the case in question, the role of the CNJ was to judge the legality of the restrictions imposed by the TJMG and to understand whether the limitation imposed on entities not members of the SFI constitutes an administrative act of the body, perfectly legal, being supported its autonomy.
However, it is important to note that there is a limit to be respected, referring to the incompetence of the body to legislate on any subject. Under the terms of the Federal Constitution, the act of legislating is restricted to the Union and, in certain cases, the competence lies with the states and municipalities. The CNJ, among other functions, is responsible for regulating, but always under the terms provided by law.
In this sense, and based on the interpretation of article 22, paragraph 1, of Law 9,514/97 (that there is no limitation on the contracting of the fiduciary alienation), by limiting rights not expressed by current legislation, the decision of the CNJ may be discussed in the future, based on the restrictions inherent to its competence.
Decision of the CNJ on the subject
Due to the restrictions imposed by the TJMG described above, a company interested in entering into a private instrument of fiduciary alienation proposed an administrative control action to the CNJ. The objective was to annul the administrative act of the TJMG that limits the rights of individuals and legal entities that do not operate in the SFI.
In the understanding of such company, the normatization made by the TJMG is in clear disagreement with the provisions of the federal legislation on the fiduciary alienation of real estate and, because of this, it would be illegal to restrict the execution of fiduciary alienation by private instrument to the institutions of the SFI.
In short, in the view adopted, the administrative act of the TJMG could not impose restrictions that were not expressly provided for in federal legislation. This is due to the existence of a specific law that regulates the execution of the fiduciary alienation and that does not reflect the aforementioned limitation.
The TJMG, on the other hand, maintains that legislation must be interpreted in harmony, making use of the "theory of dialogue of sources" and, in this sense, based on the provision of article 108 of the Civil Code,[3] the prohibition disciplined in extrajudicial rules would be fair.
In the trial session, all the counselors of the CNJ accepted the arguments of the TJMG. Thus, the request of the company in question was denied and the contested restriction, which was considered reasonable, remained valid.
Thus, the restrictions on the possibility of entering into fiduciary alienation by private instrument remain in force in Minas Gerais (and other states that regulate the subject in a similar way).
The requirement to formalize fiduciary alienation by public deed affects the costs, deadlines and even the terms of the contract. This is because the notary needs to agree to the wording of the agreement.
Thus, it is essential to analyze the rules applicable to the place of the signed business and, if so, to evaluate the best option for the agreement.
[1] Joint Provision No. 93/2020 of the General Council of Justice ofTJMG: Art. 954. The acts and contracts related to the fiduciary sale of real estate and related businesses may be executed by public deed or private instrument, provided that, in the latter case, it is entered into by an entity that is part of the Real Estate Financing System – SFI, by Credit Unions or by a Real Estate Consortium Administrator.
[2] Art. 103-B. The National Council of Justice is composed of 15 (fifteen) members with a term of office of 2 (two) years, admitted 1 (one) renewal, being: [...]
- Article 4 - The Council is responsible for controlling the administrative and financial performance of the Judiciary and the fulfillment of the functional duties of judges, and it is incumbent upon it, in addition to other attributions conferred on it by the Statute of the Judiciary:
I - to ensure the autonomy of the Judiciary and compliance with the Statute of the Judiciary, being able to issue regulatory acts, within the scope of its competence, or recommend measures;
II - to ensure compliance with article 37 and to assess, ex officio or through provocation, the legality of administrative acts performed by members or organs of the Judiciary, and may disconstitute them, review them or set a deadline for the adoption of the necessary measures for the exact compliance with the law, without prejudice to the competence of the Court of Auditors of the Union;
[3] Art. 108. Unless the law provides otherwise, the public deed is essential to the validity of legal transactions aimed at the constitution, transfer, modification or waiver of real rights over real estate worth more than thirty times the highest minimum wage in force in the country.
