In lawsuits relating to rural properties, the Public Registers Law (article 225, paragraph 3) determines that judges must require precise identification of the characteristics, boundaries, and location of the property by the parties, which is known as geo-referencing. This modern surveying technique considers 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 rural property.
From a legal point of view, in order for a rural property to be considered geo-referenced, it is not enough to merely comply with the technical requirements for surveying points and measurements, namely: (i) a technical survey in the field conducted by a professional qualified with the aid of GPS; (ii) preparation of a descriptive memorial; and (iii) payment of the respective Technical Responsibility Note (ART).
Rural property will only be considered geo-referenced when its descriptive memorial is certified by INCRA (Brazilian Institute of Colonization and Agrarian Reform) and annotated in the title and enrolment certificate of the property with the Real Estate Registry Office. What guarantees security in the system is precisely the certification of INCRA, because it is the responsibility of the agency to verify whether there are overlapping areas between the property for which one seeks certification and other rural properties already certified or in the process of certification. The objective is to avoid the issuance of separate titles for the same territorial area (duplicate title and enrolment certificates).
The requirement of geo-referencing was introduced into the Brazilian legal system by Federal Law No. 10,267/2001. The objective was to try to guarantee greater legal certainty to rural properties, thereby standardizing technical parameters and objectives in identifying, characterizing, and locating rural properties. These parameters are in accordance with the recording principle of the objective specialty. They avoid descriptions and precarious characterizations, which previously prevented correct verification of the location of the property, and this helps to reduce Brazilian land ownership problems. According to current legislation, all rural properties with an area of 100 ha or more must necessarily have geo-referencing.
In order to enforce this obligation, the law provides for geo-referencing as an essential requirement in two moments: (i) with the Real Estate Registry Office in cases of division, parceling, gathering, or any situation involving voluntary transfer of rural properties, subject to legal deadlines of enforceability (grace periods); and (ii) with the Judiciary, in the event of lawsuits relating to rural properties.
Compulsory observance of this legal provision by the Judiciary is essential in order to avoid judgments that, although final and unappealable, do not produce practical effects from the real estate recording point of view. This is because a geo-referenced description of the rural property is an objective requirement for a judicial decision. It can be said that judicial decisions that fail to observe the geo-referenced area do not necessarily refer to the same rural property and, therefore, must be reviewed.
An example: if there is a court ruling favorable to adverse possession of a rural property, but the geo-referenced descriptive memorial and the INCRA certification were not requested and registered in the real property’s title, the judicial decision cannot be registered in the title and enrollment certificate pertaining to the real property. With legal support, it will be incumbent upon the Real Estate Registry Office to require geo-referencing of the rural property to be conducted prior to recording of the judgment or, even that a new decision be rendered and then be recorded.
This, unfortunately, is not always so simple. In an attempt to certify the descriptive memorial of a rural property with INCRA, it is often discovered that part of that same territorial area is already subject to another certification in progress and that there are overlapping areas between the plat maps. When this situation occurs, it is essential to open an administrative proceeding with INCRA to ascertain the overlap. This may lead to the conclusion that the certification sought is not legitimate. If this had occurred in the example cited, the adverse possessor and plaintiff would not become the owner of the adversely possessed rural property, even if it is the beneficiary of a final court decision.
For all the reasons above, it is advisable to conduct geo-referencing of rural properties, even if the legal term of their enforceability, according to the territorial area, has not expired, in order to avoid very common debates relating to overlapping areas during geo-referencing processes. It should be noted that grace periods for geo-referencing based on the area of the property do not apply to lawsuits brought after October 31, 2005.
It is important to emphasize that not every lawsuit that deals with rural property has as a procedural requirement the submission of proof of geo-referencing of the property in order to validate the decision. This requirement shall apply only in lawsuits in which the rural property is the core of the suit and which result in the creation or modification of in rem rights relating to the property or in changes in its recording status. Lawsuits that deal, for example, with possession of rural properties (such as reintegration of tenure) are not included in this list. On the other hand, adverse possession lawsuits, judicial rectification of recordings, expropriation, establishment of administrative easements, division, and demarcation will necessarily need to observe this rule in order to guarantee legal certainty.
The understanding that the geo-referencing of rural properties is essential to the resolution of most Brazilian land problems is a settled understanding. In order to achieve this much-desired goal, however, it is necessary that all parties involved, including the Judiciary, observe the applicable rule and avoid judicial decisions that violate recording rules.
Failure to require proof of geo-referencing of rural properties opens up the legal possibility of land grabbing, with the issuance of judgments that order change of the land registry situation without being sure about which land surface is actually affected by the decision.