The lots are created after a procedure for the parceling of the soil. At the beginning, there is a large area of land, without any type of infrastructure, such as basic sanitation, electricity, drinking water supply, etc.
With this, a company or entrepreneur (land developer) decides to divide this area of land into several smaller pieces, with the objective of selling them, so that other people can build their houses, businesses and companies. This is how neighborhoods emerge. Cities tend to expand at their ends (sides), with rural areas affected by urban expansion, which generate new subdivisions.
This expansion generates the creation of new roads, for vehicles and pedestrians, which brings to the municipality the need to plan the expansion of public services that will serve this new urban region. Hence the need for approval by the municipality.
This approval will bring security so that future buyers of the lots will have access to the necessary infrastructure, as well as they will not be subject to previous lottery debts. Bearing in mind that the law gives the Real Estate Registrar the duty to analyze all the analysis of the documentation submitted by the landlord.
All legal requirements to be observed by the landlord (and consequently inspected by the Property Registry) are in Lehmann Law (6,799 / 79)
For rural subdivision, Decree-Law no. 58/37.
If the landlord, for example, has a debt capable of creating future danger to the purchasers of the lots, the Registrar must deny the registration.
With this, we can analyze how important the work of the Real Estate Registrar is in helping the City Halls in the organization.
Its analysis is so important, that the simple offer of a lot without the proper registration of the subdivision, constitutes a crime, as art. 50 of Law 6.766 / 73
Art. 50. It constitutes a crime against the Public Administration.
I – initiate, in any way, or make allotment or dismemberment of the soil for urban purposes, without authorization from the competent public agency, or in disagreement with the provisions of this Law or the relevant rules of the Federal District, States and Municipalities; II – initiate, in any way, or carry out allotment or dismemberment of the soil for urban purposes without observing the determinations contained in the administrative license act;
III – make or transmit in a proposal, contract, prospectus or communication to the public or interested parties, false statement about the legality of allotment or dismemberment of the soil for urban purposes, or fraudulently conceal fact related to it.
Penalty: Imprisonment, from 1 (one) to 4 (four) years, and a fine of 5 (five) to 50 (fifty) times the highest minimum wage in force in the country.
Sole paragraph – The crime defined in this article is qualified, if committed:
I – through sale, sale promise, lot reservation or any other instruments that manifest the intention to sell a lot in subdivision or split not registered in the competent Real Estate Registry.
II – in the absence of a legitimate title to the allotment or dismembered property, with the exception of the provisions of art. 18, §§ 4 a and 5 a of this Law, or fraudulent omission of fact relating to it, if the fact does not constitute a more serious crime. (Wording given by Law No. 9,785, of 1999)
Penalty: Imprisonment, from 1 (one) to 5 (five) years, and a fine of 10 (ten) to 100 (one hundred) times the highest minimum wage in force in the country.
What documentation is required (according to Article 18 of Federal Law No. 6.766 / 79)?
1) Application by the land developer, with notarized signature, requesting the registration of the land development.
COMMENTS:
- If the lottery player is an individual, include the qualification and consent of the spouse, if married;
- If you are a legal entity, submit certified copies of the articles of association and amendments, accompanied by a Simplified Certificate issued by the Commercial Registry.
2) Descriptive Memorial signed by the allotee and the technical responsible (with recognized firms), containing the complete description of the subdivided area and its origin, the description of the lots, plus the requirements required by article 9, paragraph 2, of Law 6.766 / 79 , reproduced below.
Law No. 6,766 / 79
Art. 9 – …..
§ 2 – The descriptive memorial must contain at least:
I – the brief description of the subdivision, with its characteristics and the fixation of the zone or zones of predominant use;
II – the urban conditions of the subdivision and the limitations on the lots and their constructions, in addition to those contained in the established guidelines;
III – the indication of the public areas that will become the domain of the Municipality in the act of registering the subdivision;
IV – the enumeration of urban, community and public services or utilities, already existing in the subdivision and surroundings.
3) Project plans approved by the City Hall, containing FEPAM approval stamp, and recognized lottery and technical responsible firms.
4) CREA ART paid off, referring to the professional services performed.
5) Act of approval of the subdivision by the City Hall (original or certified copy), whose validity, for registration purposes, is 180 days.
6) FEPAM Installation License, in the name of the lottery.
7) Proof of Verification, by the City Hall, that all the infrastructure works required by the municipal legislation have been carried out, OR, if not yet executed, a SCHEDULE must be presented – signed by the land developer and the representative of the municipality, which contains the PERIOD OF EXECUTION of the works (not exceeding 04 years), accompanied by the respective guarantee instrument (if it is a mortgage on lots, it will be indispensable to formalize by public deed).
8) Title of ownership of the property (updated registration certificate).
9) Twenty-year history of the property titles of the property (with notarized signature), accompanied by the respective certificates.
10) Exemplary of the standard purchase and sale promise contract, which will contain, necessarily, the requirements of article 26 of Law No. 6.766 / 79 and urban restrictions.
11) CERTIFICATES on behalf of the Lottery:
a) Joint Negative Certificate (or positive with negative effects) of the Federal Revenue / Attorney of the National Treasury;
b) Social Security Debts Clearance Certificate, issued by the Federal Revenue Service of Brazil, OR, if applicable, Declaration with a notarized signature of the individual allotee that he is not classified as a taxpayer with the INSS;
c) Negative Certificate of Federal Justice, civil and criminal (if allotee legal entity, only civil);
d) Negative Certificate from the State Justice (Notary Public Distributor of the Forum), civil and criminal (if allotee legal entity, only civil) *;
e) Negative Certificate of Labor Justice *;
f) Negative Certificate from the Protest Notary Public *;
g) Negative Certificate of the State Treasury (Exatoria);
h) Negative certificate of different municipal taxes.
* NOTE: The certificates of the letters “d”, “e” and “f” must be extracted at the home or headquarters of the allotee and in the jurisdiction or district where the allotment is located.
12) Certificates relating to the PROPERTY:
a) Negative certificate of municipal taxes;
b) Updated certificate of enrollment, accompanied by negative certificates of real liens and reipersecutory real and personal actions (valid for 30 days);
c) Certificates proving the Historic Vintenário (see item 9 above).
NOTE: If the subdivision area has been transformed from rural to urban within a period equal to or less than 05 years from the date of submission for registration of the subdivision, ITR’s Debt Clearance Certificate for this property must be presented.
13) Certificates in the name of those who have held real rights over the property in the period equal to or less than ten (10) years, counted from the date of submission to registration:
a) Negative Certificate of Federal Justice, civil and criminal (if legal entity, only civil);
b) Negative Certificate from the State Justice (Registry Office of the Forum), civil and criminal (if legal entity, only civil);
c) Negative Certificate from the Protests Notary.
NOTE: The certificates above must be obtained at the registered office or domicile of the legal / physical person, as well as in the jurisdiction / district of the allotment.
COMMENTS:
- The consent of the spouse in the application for registration of the subdivision will not dispense his consent for the acts of alienation of lots (art. 18, paragraph 3);
- The required certificates, in particular those of the Federal and State Courts, if positive, must be complemented by narrative certificates, in order to allow the verification of the feasibility or not of the registration (article 18, paragraph 2, of Law 6.766 / 79) ;
- The existence, on behalf of the developer, of criminal actions with respect to the crime against property and against the Public Administration, will prevent the registration of the subdivision (article 18, paragraph 2, of Law 6.766 / 79);
- After examining all the documentation and found in order, the Real Estate Registry Officer will issue a communication to the City Hall and the land developer must arrange for the publication of the PUBLICATION of the registration request for three (3) consecutive days, in one of the daily circulation newspapers in Porto Alegre, which has reach throughout the State of Rio Grande do Sul (Article 19 of Law 6.766 / 79).
