Guide · Financing

Alienação fiduciária: the lender owns your home

How Brazil's fiduciary transfer works: who holds title during the loan, what you pay, how the lender releases the guarantee and what Lei 14.711/2023 changed.

Checked on against the official sources at the bottom of the page.

In short

In Brazil a home loan is usually secured by alienação fiduciária de coisa imóvel (fiduciary transfer of real property), created by Lei 9.514 of 1997. The borrower (the fiduciante) transfers a conditional ownership, propriedade resolúvel, to the lender (the credor fiduciário) as security, and keeps possession and use of the home. The ownership comes back to the borrower when the loan is paid. Ownership of the security arises only when the guarantee is registered at the Registro de Imóveis (property registry). This is not a mortgage (hipoteca): it works differently if the borrower stops paying (mortgage default and foreclosure).

How it is created

Article 22 of Lei 9.514, as rewritten by Lei 14.711 of 30 October 2023, defines the transfer: the borrower, to secure its own obligation or a third party’s, transfers to the lender the propriedade resolúvel of the property. Article 23 says the fiduciary ownership is constituted by registration of the contract at the property registry. From that moment the borrower becomes the direct possessor (possuidor direto).

For a purchase, Resolução CMN 4.676 (article 7) requires that loans to acquire, build or produce a property be secured, and the first listed security is the fiduciary transfer of the financed property itself. The registration of the guarantee is a separate act from the registration of your purchase; both appear on the property record described in matrícula and registering the purchase.

What you keep paying

The borrower keeps the obligations of an owner. Article 23, paragraph 2, says the borrower must bear the cost of the municipal property tax (IPTU) and of condominium fees (IPTU, condominium fees). Insurance and loan instalments follow the contract.

Getting the guarantee released

When the loan is repaid, the lender must issue a termo de quitação (discharge statement) within 30 days, under article 25. If it does not, the law imposes a fine of 0.5% a month on the value of the contract. The discharge is then registered so the property is no longer in the lender’s name. Under Resolução 5.057, the same discharge document must allow a new lender to register, in one act, the substitution of the guarantee when a loan is ported (mortgage portability).

What Lei 14.711/2023 added

The 2023 law, effective on publication (31 October 2023), changed three things a buyer may meet:

  • A second fiduciary transfer over the same property. Article 22, paragraph 3, allows the transfer of the “propriedade superveniente” (the ownership that will exist after the earlier guarantee is cancelled). It can be registered from signature and takes effect when the earlier guarantee is cancelled. Earlier transfers have priority, and the later lender takes the place of the earlier one in the price.
  • Extending the guarantee to new loans. Resolução 4.676, article 22-B, allows an existing fiduciary transfer or mortgage to secure additional credit, provided the new term does not exceed the remaining term of the first loan and the total does not exceed the value originally secured.
  • Out-of-court enforcement of mortgages, in article 9 of the 2023 law, so that mortgage creditors can follow a procedure close to the one below.

Where several loans are secured by the same home, the total loan-to-value is capped at 60% from 1 January 2026 (Resolução 4.676, article 6, as amended by Resolução 5.255); see how mortgages work.

A practical consequence for foreign buyers

Because the lender holds conditional title, you cannot sell, give or re-mortgage the home as if it were free of charge: a sale needs the loan paid off or the lender’s agreement, and the registry will show the guarantee. If you plan to buy from abroad, ask your lawyer to read the registry entry for any existing fiduciary transfer before signing (due diligence certificates). Payotte found no rule in the texts read that treats a foreign-resident borrower differently under this guarantee.

What it costs

The statutes read set no fee schedule for the registration of the guarantee. Registry charges (emolumentos) are set by each state, so the amount depends on where the property is; see notary and registry fees. For a seller or later owner, the ITBI transfer tax is also due when a lender consolidates ownership after default, as article 26, paragraph 7, requires proof of its payment.

Which professional to consult

A lawyer registered with the OAB reads the contract and the registry entry (property lawyer); the Registro de Imóveis issues the certified property record; a lender explains the discharge procedure of its own contract.

Frequently asked questions

Who owns the home during the loan?

The lender holds the conditional ownership (propriedade resolúvel) as security. You hold possession and use, and ownership returns to you on full repayment.

Is alienação fiduciária the same as a mortgage?

No. Both are security over real property, but the fiduciary transfer gives the lender conditional ownership and has its own out-of-court enforcement, set out in articles 26 and 27 of Lei 9.514.

How fast must the lender release the guarantee?

Within 30 days of repayment, failing which a fine of 0.5% a month on the contract value applies.

Can a second loan use the same home?

Yes, within the limits above: a second fiduciary transfer can be registered, and the total loan-to-value across loans is capped at 60% from 1 January 2026.

Who pays IPTU and condominium fees?

The borrower, by article 23, paragraph 2, of Lei 9.514.

More guides on financing

Sources

All guides · Payotte Brazil