By Isabella Barata
First and foremost, it is essential to emphasize that registering the real estate development memorial is one of the most important steps for a project to be launched and marketed with legal certainty in Brazil.
Although many developers focus primarily on the architectural project, municipal approvals, sales strategy, and construction works, the documentary and registry complexity required for the registration of a real estate development is still frequently underestimated.
Brazilian Federal Law No. 4,591/1964 requires the registration of the real estate development memorial before the competent Real Estate Registry Office before the developer may sell or encumber the ideal fractions linked to the future autonomous units. Without this registration, the legal validity and security of the project’s commercialization may be significantly compromised.
The real estate development memorial is a set of technical, legal, registry, tax, and economic documents that formally establishes the real estate development before the competent Real Estate Registry Office.
In other words, it is not a single document, but rather a comprehensive legal and technical dossier of the project. Its purpose is to demonstrate to the Real Estate Registry Office, purchasers, financial institutions, investors, and the market that the development has an adequate legal, technical, and documentary basis to be launched and sold.
Under Article 32 of Federal Law No. 4,591/1964, the developer may only sell or encumber the ideal fractions of land and appurtenances corresponding to future autonomous units after the real estate development memorial has been registered before the competent Real Estate Registry Office.
This means that selling off-plan units presupposes the prior registration of the development. If sales, reservations, promises to purchase, or even commercial advertising of the project take place before the registration has been duly completed, the risk of challenges by purchasers, the Public Prosecutor’s Office, consumer protection authorities, registry officers, financial institutions, and commercial partners increases significantly.
The registration of the memorial involves a complex legal analysis of the project and requires an integrated reading of real estate, registry, urban planning, civil, and administrative legislation. The following legal provisions are particularly relevant to understanding the mandatory nature of this document:
Federal Law No. 4,591/1964, especially Article 32 and other provisions governing real estate developments;
Federal Law No. 6,015/1973, the Brazilian Public Registries Law;
The Brazilian Civil Code, especially provisions concerning condominium ownership, property rights, ideal fractions, and condominium bylaws;
Federal Law No. 14,382/2022, which introduced relevant changes to the Public Registries Law and to the Real Estate Development Law;
The rules issued by the State Internal Affairs Office of the Court of Justice in the state where the project is located.
Under Federal Law No. 4,591/1964, the party responsible for the development must fall within one of the following categories:
Landowner: the person or entity that owns the land on which the building or condominium will be constructed.
Promissory purchaser or assignee: the party holding an acquisition agreement or purchase commitment for the land, often in transactions involving exchange arrangements, such as payment to the landowner through future units in the development.
Builder: the professional or engineering company responsible for carrying out the construction works.
Real estate broker: a professional registered with the competent real estate brokers’ council, authorized to intermediate the transaction.
Before preparing the memorial, it is essential to analyze the property’s registration record. This is a preventive step aimed at avoiding future requirements raised by the Registry Office after the submission of documents, as such requirements often delay the conclusion of the registration.
At this stage, the registration record must be carefully reviewed, including the description of the land, ownership, chain of title, encumbrances, mortgages, attachments, possible restrictions on disposal, easements, urban planning restrictions, and the legal instruments authorizing the developer to use the property.
The purpose of this analysis is to identify any inconsistencies and correct them before the documentation is formally submitted to the Registry Office.
Therefore, it is essential to ensure that the main information contained in the registration record is consistent with the current legal and factual status of the property.
The Registry Office will also analyze the developer’s legitimacy and legal standing. For this reason, it is necessary to prepare the documents required from the individual or legal entity responsible for the development, such as:
If the developer is not the landowner, it is essential to demonstrate to the Registry Office the legal basis authorizing the development, such as a promise to purchase and sell, exchange agreement, power of attorney, specific agreement, or any other valid instrument, provided that all legal requirements are observed.
The architectural project approved by the Municipality is one of the essential documents for registering the development.
The project approval usually involves documents such as a building permit or equivalent municipal document, depending on the rules of each Municipality. It is also necessary to verify the consistency between the approved project, the area chart, and the documents submitted to the Registry Office.
In addition, compliance with urban planning legislation must be observed, since the project, the property’s registration record, and the memorial must be consistent with one another. Divergences between the information contained in the approved project, the registration record, the area chart, and the draft condominium bylaws frequently result in requirements being issued by the Registry Office.
The real estate development memorial includes technical documents that must be fully consistent with one another. Compatibility between technical and legal documents is one of the most important points of attention at this stage.
The following items usually require careful review to ensure consistency:
The draft condominium bylaws form part of the documentary set of the real estate development and must address matters such as the description of the units, ideal fractions, use of common areas, and management rules.
The draft should also include provisions on the election of the condominium manager, meetings, allocation of expenses, rights and obligations of unit owners, penalties, rules for amending the bylaws, and the condominium’s internal regulations, when included in or linked to the bylaws.
It is also important to note that the Brazilian Civil Code requires condominium bylaws to be subscribed by the holders of at least two-thirds of the ideal fractions in order to become binding. In the context of a real estate development, however, there is a specific treatment regarding registration and the future establishment of the condominium, which must later be ratified at the condominium installation meeting.
Article 32 of the Brazilian Real Estate Development Law sets forth the list of documents that must form part of the real estate development memorial, establishing the essential documentary requirements for its legal validity.
Among the required documents are the title deed to the land or an irrevocable and irreversible promise to purchase and sell, assignment, or promise of assignment, as well as the history of property titles for the previous years and the power of attorney, where the developer is not the landowner. These documents are intended to certify the developer’s legitimacy.
To verify whether the project’s information is consistent, the Registry Office will also require the approved construction project, the descriptive memorial of the construction specifications, the description of the ideal fractions of the land, and the calculation of the areas of the buildings.
Regarding the fiscal and financial status, it is necessary to submit clearance certificates relating to the property, the land sellers, and the developer; social security clearance certificates, where applicable; a certificate of financial suitability; an express statement defining the portion of the price attributable to the land and to the construction; and the assessment of the overall construction cost.
Finally, the memorial must include the draft future condominium bylaws, a statement regarding the grace period, if any, a statement concerning the number of vehicles that the garage can accommodate, and any other documents that may be required by law, depending on the specific case and on the competent Registry Office.
Once the documentation has been gathered, the memorial must be filed with the Real Estate Registry Office responsible for the property’s registration record. After filing, a protocol entry will be issued, and the registry officer will conduct the legal qualification of the title and verify whether the documents comply with the applicable legal requirements.
At this stage, the Registry Office will analyze legality, registry continuity, objective and subjective specialty, availability, and compatibility of all documents submitted. This is not a mere formal review, but a substantive verification of whether the title and supporting documents are capable of producing the intended registry effects.
It is very common for the Registry Office to issue a list of requirements. These may arise from several issues in the documentation, such as discrepancies in areas, inconsistencies between the project, registration record, and area chart, failures in the description of the units or ideal fractions, pending issues in the property’s registration record, problems with corporate representation, or absence of proper powers in the agreement or power of attorney.
The absence of certificates, the submission of expired certificates, lack of adequate municipal approval, inconsistencies in the condominium bylaws, and divergences between technical and legal documents in general may also result in the need to comply with registry requirements.
When requirements are issued, the response must be technical and strategic, because not every requirement should simply be accepted without prior legal analysis. In some cases, it may be necessary to comply with the requirement and resubmit documents. In others, however, submitting a duly reasoned response to the registry officer may be more effective than merely complying exactly with what was requested.
The Brazilian Real Estate Development Law provides that the real estate registry officer has ten business days to present, in writing, all requirements deemed necessary for registration. Once such requirements have been satisfied, the officer has an additional period of ten business days to issue the certificate and return the authenticated second copy of the documentation.
However, the conclusion of this stage depends greatly on how the legal qualification of the documents takes place, since requirements are often issued and not properly resolved within the initial protocol. For this reason, it is essential that the documentation be submitted correctly from the outset, allowing the analysis to proceed as efficiently as possible.
Once the Registry Office has completed its analysis and confirmed that there are no pending issues, the memorial is registered in the property’s registration record.
With this formalization in the registration record, the real estate development is duly constituted, authorizing the regular commercialization of the future units.
In addition, registration in the property’s record provides public registry notice of the project and offers greater security to purchasers and financial institutions when entering into agreements. It also links the ideal fractions to the future units to be sold and serves as a basis for the future institution of the condominium as the construction works and subsequent documentation progress.
Furthermore, Federal Law No. 14,382/2022 provides that the registration of the memorial subjects the land fractions and their respective appurtenances to a special condominium regime, granting the developer and future purchasers the right to freely dispose of or encumber such fractions, regardless of the consent of the other co-owners.
The registration of the real estate development has a validity period of 180 days for purposes of implementation. If the development is not implemented within this legal period, the developer must update the documentation in order to continue negotiating units.
Such implementation may result from acts such as the effective negotiation of units, financing, or the commencement of the development, depending on the applicable interpretation and the analysis of the specific case.
Therefore, once the memorial has been registered, it does not mean that the documentation will never need to be updated. Legal deadlines must be carefully observed in order to avoid additional costs related to document updates.
starting sales before registration;
Below is a practical checklist of the main points that should be reviewed before filing the documentation with the Registry Office:
The registration of a real estate development memorial requires careful legal, technical, and registry analysis. It is a strategic legal step for the success of a real estate project and involves integrated work between engineering, architecture, accounting, sales, legal teams, and the Real Estate Registry Office.
Documentary failures may delay the launch of the project and compromise the legal security of sales. Proper preparation of the documentation reduces registry requirements, avoids delays in the launch, improves security for purchasers and financial institutions, and protects the developer against legal risks.
Botti Mendes Advogados advises real estate developers in the legal structuring of real estate developments, document review, preparation of legal instruments, and monitoring of the registration process before the competent Real Estate Registry Office in Brazil.
BRAZIL. Federal Law No. 4,591, of December 16, 1964. Provides for condominiums in buildings and real estate developments. Official Gazette of the Union, Section 1, Brasília, DF, December 21, 1964.
BRAZIL. Federal Law No. 6,015, of December 31, 1973. Provides for public registries and other matters. Official Gazette of the Union, Section 1, Brasília, DF, December 31, 1973.
BRAZIL. Federal Law No. 14,382, of June 27, 2022. Provides for the Electronic Public Registries System (SERP); amends Federal Laws No. 4,591, of December 16, 1964, No. 6,015, of December 31, 1973, among other provisions. Official Gazette of the Union, Section 1, Brasília, DF, June 28, 2022.
BRAZIL. Federal Law No. 10,406, of January 10, 2002. Institutes the Brazilian Civil Code. Official Gazette of the Union, Section 1, Brasília, DF, January 11, 2002.
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