Rafael Carretero, Sofia Desinano e Gustavo Ceridorio
In line with the policy of economic and financial incentives to combat the effects of the covid-19 pandemic, the federal government issued Executive Order No. 992/20, on July 16 ("MP 992"), to regulate the possibility of sharing the guarantee for fiduciary sale of real estate between more than one credit transaction within the National Financial System (SFN). The measure, which amends federal laws No. 13,476/17 and 6,015/73 is mainly aimed at broadening access to credit for borrowing companies.
In its article 14, MP 992 includes articles 9-A to 9-D in Law No. 13,476/17 and expressly allows the fiduciary seller, with the consent of the fiduciary creditor, to use the real estate already fiduciarily sold as collateral for new and autonomous credit transactions of any nature, provided that they are contracted with the fiduciary creditor of the original credit transaction.
By allowing for the sharing of the fiduciary sale of real estate, MP 992 promises to facilitate consumers' access to financial products, in addition to ensuring stability to the SFN. Thus, due to the nature of the fiduciary sale, new transactions tend to present more beneficial term and interest conditions to the borrower, when compared to unsecured obligations. In addition, by establishing more rigor and transparency in contracting these transactions, the measure also brings benefits to the stability of the SFN.
Although driven by the current moment of crisis, the publication of MP 992 stems from an existing movement to expand access to credit through the fiduciary sale of real estate.
The concept of a fiduciary sale of real estate was introduced into the Brazilian legal system by Law No. 9,514/97, with the purpose of addressing a crisis in the housing sector. The main focus of the fiduciary sale of real estate was to help ordinary citizens negotiate better financing conditions for housing, since it limited the value of the financing to the value of the property subject to the security interest, even though it represented an effective guarantee of execution.
The experience confirmed the great effectiveness of the use of fiduciary sale as a guarantee and drove the demand for the expansion of the concept, always aiming at diffusion and cheapening of credit for other types of transactions. The response given by the Legislative Branch was the enactment of Law No. 10,931/04, which, in its article 518, established the possibility for obligations in general to be secured via fiduciary sale of real estate. Thus, the legislator made explicit its choice to allow the broad use of this instrument as an in rem guarantee in various types of obligations, with a political component to enable reduction of interest rates.
MP 992 arose to investigate important issues raised by the success of previously enacted laws. Its main debate is the possibility of sharing guarantees for fiduciary sales of real property for debts contracted with different financial institutions, expanding once again access to credit. However, the MP has some limits in its application, which represent important points of attention to be highlighted.
Although the new MP 992 does not expressly provide for the possibility of sharing debt guarantees by different financial institutions, it also does not completely prevent this possibility. In the inclusions made in Law No. 13,476/17, MP 992 mentions only the "original creditor" in relation to a credit transaction.
In this sense, we believe that it is still possible to create a guarantee for fiduciary sale of real estate for debts with different creditors, when this guarantee is created in favor of all creditors simultaneously, by means of the same instrument.
The new MP 992, however, was disappointing, as it established that the sharing of the guarantee for fiduciary sale of real estate is limited to transactions carried out under the SFN, since it excludes transactions carried out in the capital markets, among others. The regulators of the SFN are expected to take a position on whether or not to extend sharing of guarantees to transactions outside the SFN.
Although some changes proposed by MP 992 are in line with expansion of the use of fiduciary sale of real estate as a guarantee in credit transactions, others seem to go against this movement.