Does fiduciary alienation require a public deed?
No. To pledge a property as collateral through fiduciary alienation, a public deed is optional: article 38 of Brazil's Law 9,514/1997 allows these contracts to be executed by a private instrument with the effects of a public deed. In practice, you can formalize the guarantee through a contract signed between the parties, without going to the Notary's Office — and it holds as if it were a deed. That is what Brazil's National Council of Justice (CNJ) definitively confirmed in July 2026, when it struck down the deed requirement for contracts signed outside the housing finance system.
There is, however, a point that confuses almost everyone: waiving the deed is not waiving the registration. The contract still needs to be registered at the Land Registry (Cartório de Registro de Imóveis). It is the registration — not the type of document — that brings the guarantee into existence.
What is the difference between a deed, a private instrument and registration?
They are three distinct things, done in different places, and confusing them is the most common mistake made by anyone financing or pledging a property. The table below separates the three:
| Document | Where it is done | What it is for | Mandatory in fiduciary alienation? |
|---|---|---|---|
| Public deed | Notary's Office (tabelionato) | Formalize the agreement with public faith | No — it is an option |
| Private instrument | Between the parties themselves | Formalize the agreement with the effect of a deed (art. 38, Law 9,514/97) | It is the alternative to the deed |
| Registration | Land Registry | Constitute the guarantee on the property record | Yes — it is what makes the guarantee exist |
The central point: the deed and the private instrument are alternatives to each other — you use one or the other. Registration is not an alternative to anything. It is always required. The same logic applies to buying a property: the deed formalizes the agreement, but only registration transfers ownership — a subject we detail in our comparison of the Brazilian and American registration systems.
What did the CNJ decide about the deed in fiduciary alienation?
On July 24, 2026, the National Corregidor of Justice, Justice Mauro Campbell Marques, eliminated the public-deed requirement for formalizing fiduciary alienation in contracts signed outside the SFI and the SFH. The decision granted a request filed by the federal government (case 0007122-54.2024.2.00.0000) and now bars land registrars from refusing contracts formalized by private instrument when the creditor is not part of those systems.
The decision ends a dispute that began in 2024. That year, faced with divergent interpretations across the internal affairs offices of five state courts (Minas Gerais, Pará, Maranhão, Paraíba and Bahia), the CNJ issued provisions requiring a public deed from all market players — except those in the SFI and the SFH. The basis invoked was article 108 of the Civil Code, which treats the public deed as a requirement for transactions involving real property rights. Campbell had already suspended those provisions on a preliminary basis back in 2024 and, in July 2026, made the decision definitive.
What prevailed was the specific law: article 38 of Law 9,514/1997 expressly authorizes the private instrument with the effects of a public deed, for individuals or legal entities in general. Campbell also cited two Federal Supreme Court decisions, among them Writ of Mandamus 39,930, by Justice Gilmar Mendes, to the same effect. The players most affected by the old requirement were precisely those outside the system — investment funds, real estate funds, securitization firms and fintechs. (CNJ decision reported by Conjur on July 27, 2026.)
Without a deed, is my guarantee safe?
Yes — as long as the contract is registered. This is where the real risk lies, and it has nothing to do with the deed and everything to do with registration. Under Law 9,514/97 (art. 23), the fiduciary property is constituted upon registration of the contract at the Land Registry. Until there is registration, there is no guarantee: the creditor has, at most, a personal right against the debtor, but not a real guarantee over the property.
The warning is not theoretical. In January 2025, the Superior Court of Justice (STJ) ruled that a property seller lost the right to out-of-court enforcement of the debt for not having registered the contract with a fiduciary alienation clause. In other words: saving on the deed is legitimate; failing to register is what makes the guarantee vanish. A cheap document is not the same as a skipped document.
What changes for homebuilders and buyers
For the homebuilder, the news is good: it is possible to structure sales with a guarantee by private instrument, without the cost and time of the Notary's Office, with the same legal certainty — provided the registration is done correctly and on time. The numbers explain the relief. According to the ABRAINC study presented by the federal government, a public deed costs between 0.8% and 2% of the property's value, depending on the state. Without the requirement, the estimated savings on credit operations secured by fiduciary alienation range from R$ 2.1 billion to R$ 5.2 billion (based on the June 2024 balance); for homebuilder and land-developer financing alone, the annual bill drops by between R$ 248 million and R$ 620 million.
For the buyer, a cost that many people paid thinking it was mandatory disappears. But, for both sides, the step that cannot fail is registration on the property record: it is what protects the deal against third parties, against the bankruptcy of the other party and against future disputes. When in doubt, the rule is simple: save on the deed, if you want — but never on the registration.
Where Conecta comes in
Conecta is the digital concierge and real estate expediter that handles this documentation journey end to end. We orchestrate financing, deed, transfer tax (ITBI) and registration over WhatsApp, ensuring that the contract — by deed or by private instrument — reaches the Land Registry and is actually registered, which is what makes the guarantee hold. That way the homebuilder closes the sale with the paperwork resolved, and the buyer does not find out too late that they saved in the wrong place.
Want to simplify the after-sales of your developments? Talk to Conecta.
Frequently asked questions
Can fiduciary alienation be done by private instrument?
Yes. Article 38 of Law 9,514/1997 allows the fiduciary alienation contract for real estate to be executed by a private instrument with the effects of a public deed, by any individual or legal entity — inside or outside the SFI and the SFH.
If I don't make a public deed, is the contract valid?
Yes. The public deed is optional in fiduciary alienation. What cannot be missing is the registration of the contract at the Land Registry, which is what constitutes the guarantee (art. 23 of Law 9,514/97).
What is the difference between a deed and registration?
The deed, drawn up at the Notary's Office, formalizes the agreement. The registration, done at the Land Registry, is what gives the guarantee its effect (or, in a purchase, transfers ownership). Without registration, the contract exists between the parties but is not valid against third parties.
What happens if I don't register the contract?
The guarantee is not constituted. In January 2025, the STJ denied a creditor the right to enforce the debt out of court precisely because the contract with fiduciary alienation had not been registered.
Does this rule apply to both banks and homebuilders?
Yes. With the National Corregidor of Justice's definitive decision on July 24, 2026 — which struck down the 2024 CNJ provisions — and the STF's position in Writ of Mandamus 39,930, the private instrument is valid for all players, whether or not they are in the SFI and the SFH, including funds, securitization firms and fintechs.