Federal Law No. 13,838/2019, published on June 5, sought to facilitate the geo-referencing process of rural properties. With the addition of a new paragraph 13 into article 176 of the Public Registers Law, the consent of abutting landowners in the geo-referencing process required in cases of subdivision, splitting, consolidation, and transfer of rural properties was dispensed with. Consent  will be replaced by a declaration by the applicant that he respected the limits and boundaries of his property.

Geo-referencing is a modern surveying technique used to measure and describe rural properties. It uses the coordinates of the vertices, measured with the help of GPS and magnetic coordinates by satellite (UTM), in order to specify the area, shape, and location of a property.

From a legal point of view, in order for a rural property to be considered geo-referenced, it is not enough to fulfill the technical requirements for surveying points and measurements, which are: (i) a technical survey in the field conducted by a professional qualified with the aid of GPS, (ii) preparation of a deed description, and (iii) payment of the respective Technical Responsibility Note (ART). A rural property will only be considered geo-referenced after certification of the respective deed description by the National Institute for Colonization and Agrarian Reform (the Instituto Nacional de Colonização e Reforma Agrária, or INCRA in its abbreviation in Portuguese), proving that there is no overlap of area, and after its annotation in the property record with the competent Real Estate Registry Office.

At the time of recording of the deed description certified by INCRA at the Real Estate Registry Office, it was formerly required to present the consent of the abutting landowners of the property being geo-referenced. This occurred because the Real Estate Registry Offices believed that the geo-referencing of rural properties is a kind of rectification of an area, following the procedure set forth in article 213 of the Public Records Law. This requirement ended up delaying the completion of geo-referencing process, which often ended up depending on the completion of lawsuits in order to take effect.

Undoubtedly, the change in the law represents an advance in speeding up the completion of geo-referencing and adding into the Real Estate Registry Office the complete and correct description of the property. However, dispensing with the prior and express consent of abutting landowners reduces the legal certainty of the procedure, since it opens the possibility of future claims from neighbors who feel harmed.

In addition, considering that the change occurred in article 176 of the Public Records Law and that article 213, which deals with the procedure for rectification of areas, has not been altered, there are doubts as to whether this dispensing with consent will be applied in all cases or if the Real Estate Registry Offices will continue to impose this requirement in situations where geo-referencing results in inclusion or alteration of the perimeter measurement and, consequently, in alteration of the area of the property undergoing the geo-referencing process.

Considering the objective of Law No. 13,838/2019, the best interpretation of the change, in our opinion, is that the dispensing of the consent of the abutting landowners, since it is subject to a more specific rule, should be a general rule for the geo-referencing process of rural properties, even if it results in an increase or decrease in the area of the property. However, this rule will have exceptions and should be analyzed on a case-by-case basis and according to criteria of reasonableness.

It is important to emphasize that geo-referencing aims to update property descriptions based on the Brazilian geodetic system and increase legal certainty, avoiding overlapping areas, and not creating a means to legitimize the acquisition of areas in an irregular way. Whenever the Real Estate Registry Office, for any reason, believes that irregular acquisition of an area has occurred, it may be required that the deed description of the geo-referenced property contains information on the description and area of the abutting properties, as well as the observance of the procedure set forth in article 213 of the Public Records Law and, consequently, the consent of abutting landowners in order to protect themselves from future claims.