I bought a property through a private instrument - commonly known as a drawer contract - I paid off the full amount, but the seller refuses to grant the deed, what should I do?
Many times we are faced with the situation described above, that is, at the time of purchase of the property, the buyer chooses to use the private instrument, due to the high cost for granting and registering the public deed or due to the payment in installments of the price.
However, the contract is kept for a few years and the buyer realizes the need to grant the deed and consequent registration with the real estate registry only when interest in the property's commercialization arises.
In view of this, the buyer seeks contact with the seller, but is unable to locate him or even worse, he refuses to grant the deed and requires some financial consideration, even when the price is fully paid.
In this scenario, the buyer is allowed to bail out the Judiciary and file a compulsory adjudication action, which is provided for in Article 16 of Decree Law 58 of 1937 and 25 of Law 6.766 / 79.
As a result of this action, the Judge will issue a letter of sentence determining that the competent registry office will transfer the property to the buyer, regardless of the granting of public deed.
It so happens that, for the filing of the aforementioned demand, it is necessary to comply with some requirements, in particular, the buyer must have proof of the price settlement and the contract must have been signed with an irreversible clause.
A relevant aspect is the unnecessary prior registration of the private instrument in the real estate registry office, as established in the STJ's summary 239.
The demand must be filed against the tabular owner of the property, that is, the one that appears on the registration with the registry office, regardless of whether he was the seller of the property.
However, it is important to clarify that the compulsory award will be applicable only in regular properties, that is, those that have individual registration with the registry office.
In the event of irregular land parceling, when the owner of a larger area divides the property into lots and makes the sale to third parties, without observing the rules brought by specific legislation and failing to register the project with the competent registry office, it is not possible compulsory award.
This time, when it is a property with irregular tabular registration to other possibilities for regularization of the property, such as, for example, adverse possession, which will be specifically addressed in another article.
Finally, as demonstrated, the buyer who holds only the private purchase and sale contract, can regularize his property regardless of the granting of public deed by the seller, but the specific case must always be analyzed, and it is essential to consult a lawyer specialized in matter.
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