Establishment of Usufruct and Registry Principles

Understand the concept of establishment of usufruct, the requirement for a public deed, and the application of registry concentration and continuity principles.

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Por Notarial and Registry Editorial Team of the 5th Notary Office of Recife — Notarial Editorial Team · 5º Tabelionato de Notas de Recife

The establishment of usufruct (instituição de usufruto) is the act by which the property owner grants the use and fruits of an asset to another person. The registration of this in rem right (direito real) at the Real Estate Registry Office (registro de imóveis) ensures public notice (publicidade) and legal certainty against third parties.

This article describes the federal rules applicable to real estate usufruct. The text also presents the registry principles governing real estate registries throughout the Brazilian national territory.

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This article answers

  • What is the establishment of usufruct and what is its legal purpose?
  • How does the principle of concentration of acts apply to the real estate property record (matrícula imobiliária)?
  • What is the difference between the establishment of usufruct and the reservation of usufruct?
  • When must the establishment of usufruct be executed by public deed (escritura pública)?
  • Which documents are required to register usufruct at the Real Estate Registry Office?

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In summary

  • The establishment of usufruct is the legal transaction in which the property owner transfers the right to use and enjoy the real estate to another party, retaining bare ownership (nua-propriedade).
  • The in rem effectiveness of usufruct depends on registering the translatice title on the property record (matrícula) maintained at the Real Estate Registry Office (Código Civil [Brazilian Civil Code], art. 1º,245).
  • The principle of concentration guarantees that acts and encumbrances on real estate are centralized on its own property record.
  • Formalization requires a public deed at the Notary Public Office (tabelionato de notas) whenever the value of the property exceeds thirty minimum wages (Código Civil, art. 108).

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The establishment of usufruct grants the right to use the real estate and collect its revenues to a person called the usufructuary (usufrutuário). The original owner becomes the bare owner (nu-proprietário). They retain indirect possession and the ability to dispose of the bare ownership.

This in rem right over real estate aims to guarantee temporary or lifelong housing or income. Art. 1,245 of the Código Civil brasileiro (Brazilian Civil Code) requires registration at the real estate registry service for the right to produce effects against third parties Lei nº 10.406/2002 — Código Civil, art. 1º.245.

Without due registration on the property record, the agreement is valid only between the contracting parties. It does not prevent attachments (penhoras) or alienations carried out by third parties acting in good faith.

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How does the principle of concentration of acts apply to the real estate property record (matrícula imobiliária)?

The principle of concentration of acts establishes that any legal alteration to the property must be recorded on its property record (matrícula). This protects buyers and creditors by centralizing relevant facts within the history of the property.

Alongside this principle, the principle of registry continuity (continuidade registral) applies. It requires each act to maintain a logical sequence with the previous record. The party establishing the usufruct must be listed as the owner on the property record.

The principle of subjective and objective specialty (especialidade subjetiva e objetiva) requires exact identification of the parties and the asset. Compliance with these rules by the real estate registrar ensures public authenticity (fé pública) and public notice of legal acts (Lei nº 8.935/1994 [Notary and Register Law], art. 1º).

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What is the difference between the establishment of usufruct and the reservation of usufruct?

In the establishment of usufruct, the holder of full ownership grants the right of use and enjoyment to a third party. They remain as the bare owner of the real estate. The in rem right arises from the act of grant.

In the reservation of usufruct, the owner donates or sells the bare ownership to another person. In the same act, they retain the usufruct over the asset for themselves. This procedure is common in family estate planning.

To understand in detail the retention method at the time of donation, read our article on donation of real estate with reservation of usufruct and restrictive clauses. Also understand the procedural aspects in the article on reservation vs. establishment of real estate usufruct.

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When must the establishment of usufruct be executed by public deed (escritura pública)?

The establishment of usufruct requires a public deed executed at the Notary Public Office (tabelionato de notas) when the real estate is worth more than thirty minimum wages (Código Civil, art. 108). The notary public verifies the legal capacity of the parties and drafts the notarized title with public faith (Código Civil, art. 215).

After signing the public deed, the interested party must present the official copy (traslado) or certificate of the act to the competent Real Estate Registry Office. The in rem right arises only upon registration on the property record.

Events such as changes in marital status or the extinction of usufruct require specific entries on the property record. To understand how to distinguish each entry, see our guide on the difference between registration (registro) and annotation (averbação) on the property record.

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Which documents are required to register usufruct at the Real Estate Registry Office?

Registering usufruct requires presenting personal identification of the contracting parties and proof of payment of due taxes. The registry official conducts the registry qualification (qualificação registral) of the title prior to performing the act.

Notarial and registry service delivery complies with the organizational norms of the Conselho Nacional de Justiça (CNJ — National Council of Justice), set forth in Provimento CNJ nº 149/2023 (Provimento CNJ nº 149/2023 [CNJ Provision No. 149/2023], Book II). The electronic environment of the Sistema Eletrônico dos Registros Públicos (SERP — Electronic Public Registry System) simplifies certificate processing (Lei nº 14.382/2022, art. 3º).

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Checklist of documents

  • [ ] RG and CPF of grantors and grantees (or equivalent official identification document).
  • [ ] Updated marriage certificate or birth certificate issued by the Civil Registry of Natural Persons (registro civil das pessoas naturais).
  • [ ] Updated property record certificate (certidão de matrícula) with encumbrances and pending lawsuits, issued by the Real Estate Registry Office.
  • [ ] Tax assessment guide and proof of payment of the state tax (ITCMD) or municipal tax (ITBI), depending on the onerous or gratuitous nature of the act.
  • [ ] Public deed of establishment of usufruct executed at a Notary Public Office (tabelionato de notas).
  • [ ] Tax clearance certificate for municipal taxes levied on the property.

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In practice

Case 1: Onerous establishment of lifetime usufruct

A property owner decided to establish a lifetime usufruct in favor of a relative. He appeared at a Notary Public Office to execute the public deed of establishment. Subsequently, the official certificate of the act was presented to the competent real estate registrar. The registrar performed the preliminary entry (prenotação) and registration on the property record (matrícula imobiliária). Consequently, the in rem right of use became effective against third parties, adhering to the principle of registry continuity.

Case 2: Lack of registration of a private contract

Two individuals signed a private contract granting use to create a lifetime usufruct over a high-value urban residential property. The document was neither executed by public deed nor brought to the Real Estate Registry Office. Years later, a creditor of the bare owner attached the property. Because the usufruct was not recorded on the property record, the right could not be opposed to the third-party creditor acting in good faith. The lack of registration defeated the intended protection due to the absence of public notice.

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Common errors

  • Confusing a private contract with a valid title: Signing a private contract for real estate valued above thirty minimum wages prevents direct registration. The law mandates a public deed executed at a Notary Public Office (Código Civil, art. 108).
  • Failing to bring the deed to the Real Estate Registry Office: Signing the deed at the Notary Public Office does not transfer the in rem right by itself. Usufruct arises only upon registration on the property record (Código Civil, art. 1º,245).
  • Ignoring payment of the applicable tax: Non-payment of ITCMD or ITBI generates a requirement note (nota de exigência) during registry qualification. This halts the registration procedure at the Real Estate Registry Office.
  • Failing to observe the property record history: Ignoring the requirement to annotate marriages or name changes of property owners listed on the record breaks the chain of title (cadeia filiatória), violating the principle of continuity.

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  • Lei nº 10.406/2002 (Código Civil [Civil Code]), art. 108 — Defines the requirement of a public deed for transactions involving in rem rights on real estate valued above 30 minimum wages Lei nº 10.406/2002 — Código Civil, art. 108 — https://www.planalto.gov.br/ccivil_03/leis/2002/l10406compilada.htm
  • Lei nº 10.406/2002 (Código Civil), art. 1º,245 — Establishes that the creation and transfer of in rem rights on real estate inter vivos occur upon registration of the title at the Real Estate Registry Lei nº 10.406/2002 — Código Civil, art. 1º.245 — https://www.planalto.gov.br/ccivil_03/leis/2002/l10406compilada.htm
  • Lei nº 6.015/1973 (Lei de Registros Públicos [Public Registries Law]), art. 1º and related articles — Governs registry services and public notice of acts recorded on the property record — https://www.planalto.gov.br/ccivil_03/leis/l6015compilada.htm
  • Lei nº 8.935/1994, art. 1º — Declares that notary and registry services guarantee public notice, authenticity, security, and effectiveness of legal acts Lei nº 8.935/1994, art. 1º — https://www.planalto.gov.br/ccivil_03/leis/l8935.htm
  • Provimento CNJ nº 149/2023, Book II — Consolidates the regulations of the National Correguelership of Justice regarding notary and registry services Provimento CNJ nº 149/2023, Livro II — https://atos.cnj.jus.br/atos/detalhar/5243

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Frequently asked questions

The establishment of usufruct is the legal act by which the owner grants another person the rights of use and enjoyment over real estate. The usufructuary gains the right to reside in the property or receive its rental income for a specific period or for life.

How does the principle of concentration of acts apply to the real estate property record (matrícula imobiliária)?

The principle of concentration dictates that any relevant legal fact or act concerning real estate must be registered on its property record. This ensures that the real estate registry certificate displays the full legal status of the property.

What is the difference between the establishment of usufruct and the reservation of usufruct?

In the establishment of usufruct, the owner grants usufruct to a third party and retains bare ownership. In the reservation of usufruct, the owner donates or sells bare ownership to another person and reserves usufruct for themselves.

When must the establishment of usufruct be executed by public deed (escritura pública)?

The establishment of usufruct requires a public deed executed at a notary public office when the real estate is valued above 30 minimum wages. Properties of lower value permit a private contract with deed validity.

Which documents are required to register usufruct at the Real Estate Registry Office?

You must present an identification document with CPF, updated marriage or birth certificates, the property record certificate (certidão de matrícula), and proof of transfer tax payment (ITCMD or ITBI).

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Editorial team: Notarial and Registry Writing Team of the 5th Notary Public Office of Recife

Date of last legal review: January 15, 2025

Content version: v1.0 — Federal rule, applicable to real estate notary and registry services across Brazil.

Notice: This content is exclusively informative and educational. It does not replace direct consultation with competent extrajudicial offices nor formal analysis of titles submitted for notarial or real estate registry qualification.

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