Considerações acerca da lei de alienação fiduciária de bens imóveis no Brasil

Abstract

The fiduciary alienation of real estate is a type of guarantee used in Brazil that arouses several controversies and debates about its application and legal consequences. This form of guarantee, provided for in Law No. 9,514/1997, has been widely used in the real estate market as an alternative to the traditional mortgage system, allowing the debtor to transfer the property of the real estate to the creditor as collateral for the debt. This transfer takes place through a fiduciary alienation contract, in which the debtor becomes the direct possessor of the property, while the creditor acquires fiduciary ownership. Although this form of guarantee was created with the aim of facilitating access to real estate credit, it raises a series of legal questions and controversies. This work provides legal reflections on the constitutionality of Law No. 9,514/1997, the protection of debtor rights, extrajudicial execution procedures, the prohibition of the lex commissoria, and the possibility of applying the “Martian Pact”. It also addresses the treatment of legislation regarding the reimbursement of improvements and the provision of legal debt forgiveness by the fiduciary creditor. Thus, this study aims to contribute to the improvement of the legal system by proposing possible solutions and legal reforms that can mitigate the identified controversies, ensuring greater security in fiduciary alienation operations.