Reservation and Establishment of Usufruct: Guide and Differences

Understand the differences between reservation and establishment of usufruct in the real estate registry, taxes involved, documents, and procedures.

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Por Equipe Editorial do 5º Tabelionato de Notas do Recife — Redação jurídica notarial e registral · 5º Tabelionato de Notas de Recife

Context Note: This content describes Brazilian notarial and real estate registry law.

Em resumo

  • Reservation and establishment of usufruct are two distinct legal methods of dividing rights over real estate between effective use and bare ownership (nua-propriedade).
  • Reservation of usufruct (deductio) occurs when you donate bare ownership and retain the use of the property for yourself.
  • Establishment of usufruct (constitutio) occurs when you grant the right of enjoyment to another person while remaining the owner.
  • Both acts require a public deed (escritura pública) at a notary office (tabelionato de notas) and subsequent registration at the real estate registry office (registro de imóveis) to guarantee legal certainty.

Qual a diferença entre reserva e instituição de usufruto?

Understanding the concepts of reservation and establishment of usufruct prevents serious errors in estate planning. The fundamental difference lies in the origin of the in rem right (direito real) and the initial ownership of the property.

In reservation of usufruct, technically termed deductio, the current owner of the property decides to transfer bare ownership (nua-propriedade) to another person, but retains the in rem right to inhabit, use, and enjoy the fruits of the property. This is common in family arrangements. Parents donate property to their children while reserving a life estate usufruct for themselves. Thus, they ensure housing for the rest of their lives.

In the establishment of usufruct, termed constitutio, the owner retains the bare ownership of the property and grants the right of use and enjoyment to a third party. For example, if you own a commercial office, you can establish usufruct of that property in favor of a relative or entity. You remain the owner in the real estate registry, but rent payments and possession belong to the designated usufructuary.

The Código Civil (Brazilian Civil Code - Law No. 10,406/2002) governs usufruct as an in rem right over another's property [VERIFY: Civil Code, art. 1º,225, IV]. The appropriate choice between reservation and establishment of usufruct affects taxes and the drafting of the public deed.

| Feature | Reservation of Usufruct (Deductio) | Establishment of Usufruct (Constitutio) |

| :--- | :--- | :--- |

| Origin of the act | The owner transfers or donates bare ownership and reserves usufruct for themselves. | The owner retains bare ownership and grants usufruct to another party. |

| Who holds usufruct | The former sole owner of the property. | A third party (designated beneficiary). |

| Main act in registration | Transfer/Donation with concurrent detachment of usufruct on the property register sheet (matrícula). | Direct creation of an in rem right of usufruct over the property. |

| Typical taxation | ITCMD on donation of bare ownership (and a portion of usufruct, depending on state law). | ITCMD (if established gratuitously) or ITBI (if established for consideration). |

| Common application | Family succession planning between parents and children. | Assignment of income or temporary housing to third parties without losing property ownership. |

To explore your structuring options further, check our guide on deeds of donation and purchase and sale.

Como funciona a reserva e instituição de usufruto no registro de imóveis?

The registration procedure for reservation and establishment of usufruct takes place before the real estate registry official (oficial de registro de imóveis) of the property's jurisdiction. Simply signing a public deed at the notary office (tabelionato de notas) does not transfer the in rem right against third parties. The legal creation of usufruct depends on real estate registration (Código Civil, art. 1º,245) Lei nº 10.406/2002 — Código Civil, art. 1º.245.

Upon receiving the deed, the registrar conducts real estate title qualification (qualificação registral imobiliária). They verify compliance with federal law and guidelines from the Conselho Nacional de Justiça (National Council of Justice - CNJ). If everything complies with the Lei dos Registros Públicos (Public Records Law - Law No. 6,015/1973), the act is recorded on the property's register sheet (matrícula).

In registration practice, the sequence of acts differs between reservation and establishment of usufruct:

  • Reservation procedure: The real estate registry official registers the transfer of bare ownership to the new acquirer and enters the corresponding registration of reserved usufruct in favor of the former owner.
  • Establishment procedure: The real estate registry official opens a specific registration entry for the creation of the in rem right of usufruct in favor of the beneficiary, keeping the original owner in the property's matrícula history.

To understand how title processing and priority work, see the article on real estate title qualification and entry priority deadlines.

Quais são os documentos exigidos para registro da reserva e instituição de usufruto?

For the real estate registrar to complete the reservation and establishment of usufruct, you must present a complete set of documents. The real estate registry official conducts an analysis to prevent nullity of the legal transaction (Código Civil, art. 166) Lei nº 10.406/2002 — Código Civil, art. 166.

Essential documents include:

  • **Public Deed (Escritura Pública):** Executed at a competent notary office (tabelionato de notas), containing clear clauses regarding reservation and establishment of usufruct and precise identification of the parties Lei nº 10.406/2002 — Código Civil, art. 108.
  • Tax Payment Slip: Proof of payment for ITCMD (state gift and transfer tax) or ITBI (municipal transfer tax on onerous transactions), along with the respective tax clearance certificate.
  • **Property Register Certificate (Certidão de Matrícula):** Updated full-text certificate listing encumbrances and in rem actions, usually valid for 30 days.
  • **Clearance Certificates (Certidões Negativas):** Municipal tax clearance certificates (IPTU or TRSD) and federal tax certificates for all parties involved.
  • Personal Identification Documents: Identity cards, CPF (individual taxpayer registry), marriage or birth certificates, and full qualification of the parties.

Accuracy in documentation ensures compliance with standards issued by the Corregedoria-Geral de Justiça (General Corregidor Office of Justice) and the Instituto de Registro Imobiliário do Brasil (Real Estate Registry Institute of Brazil - IRIB).

Qual a diferença nos impostos (ITCMD e ITBI) para reserva e instituição de usufruto?

Taxation on reservation and establishment of usufruct varies depending on whether the transaction is gratuitous or for consideration (onerosa). The tax on transfers by donation is the state-level ITCMD (Imposto sobre Transmissão Causa Mortis e Doação). The tax on transfers for consideration is the municipal-level ITBI (Imposto sobre Transmissão de Bens Imóveis).

In a donation with reservation of usufruct, the tax due is ITCMD. Several Brazilian states divide the calculation base. The state may collect a percentage (for example, two-thirds of the assessed value) upon transfer of bare ownership and the remaining portion (one-third) upon future consolidation of usufruct. Other states tax the full property value at the time of the transaction.

In the establishment of usufruct, the nature of the operation determines the tax:

  • Gratuitous establishment: If you establish usufruct for someone without receiving payment, the act constitutes a donation of an in rem right. State ITCMD applies to the fraction of the usufruct value (generally set at one-third or one-half of the property value, depending on state regulations).
  • Establishment for consideration: If you sell the right of usufruct over a property for a fixed period or for life, the transaction is treated as a purchase and sale of a right. Municipal ITBI applies to the transaction value or the minimum tax calculation base established by the municipality.

Before executing the public deed at the notary office, calculate the official rates applicable in your state or municipality.

To explore the practical aspects of donation further, access our article on donation with reservation of usufruct.

O que acontece se a reserva e instituição de usufruto não for levada ao registro de imóveis?

Many people sign a public deed at the notary office but fail to register it with the real estate registry official (oficial de registro de imóveis). This omission creates severe legal risks for both reservation and establishment of usufruct.

Under Brazilian law, in rem rights over real property are created and transferred only upon registration of the title with the real estate registry (Código Civil, art. 1º,245) Lei nº 10.406/2002 — Código Civil, art. 1º.245. Without real estate registration, you possess only a personal contractual right against the other party, lacking enforceability against third parties (erga omnes).

Failing to register creates the following risks:

  • Judicial execution against the former owner: If the establishment of usufruct is not registered, creditors of the bare owner may attach and auction the property free of usufruct. The designated usufructuary risks losing possession of the asset.
  • Unauthorized sale of the property: Without registration of the reserved usufruct on the matrícula, the apparent owner could sell the property to third parties acting in good faith, triggering complex litigation.
  • Insecurity regarding tenants: Without a registered act, the usufructuary may face difficulties signing lease agreements or collecting rent through court proceedings.

Integrated action between notary and registry services protects your assets against litigation (Lei nº 8.935/1994, arts. 1º and 6º) Lei nº 8.935/1994, art. 1º Lei nº 8.935/1994, art. 6º.

Checklist de documentos

To simplify requesting reservation and establishment of usufruct, use this preliminary checklist:

  • [ ] Updated property register certificate (certidão de matrícula) obtained from the real estate registry (valid for 30 days).
  • [ ] Official ID and CPF (taxpayer ID) of grantors and grantees.
  • [ ] Marriage or civil union certificates of the parties (with annotations, if any).
  • [ ] Municipal tax clearance certificate for the property (IPTU and municipal fees).
  • [ ] Tax assessment guide and proof of payment for applicable taxes (ITCMD or ITBI).
  • [ ] Draft public deed or certified copy issued by the notary office (tabelionato de notas).
  • [ ] Registration application addressed to the competent real estate registry official.

Na prática

Caso 1: Planejamento familiar com reserva de usufruto

Maria held sole ownership of a residential property. To organize her succession without compromising her livelihood, she appeared at a notary office and executed a public deed of donation with reservation of usufruct. Maria donated the bare ownership of the asset to her son Lucas and reserved lifetime usufruct for herself. The title was submitted to the real estate registry, which recorded both the donation and the reservation of usufruct on the property register sheet (matrícula). Maria continued living in the home without risk of losing possession, while her son became the legal bare owner.

Caso 2: Apoio financeiro com instituição de usufruto

Roberto owned a commercial office and wanted to provide financial support to his sister Julia. Rather than transferring ownership of the office, Roberto executed a deed establishing temporary usufruct for a 10-year term in favor of Julia. Following registration of the title with the real estate registry, Julia began directly receiving rental income from the office. At the end of the 10-year term, usufruct will be cancelled by simple annotation of the expiration date, restoring full possession to Roberto.

O que costuma dar errado

  • Confusing a private contract with a public deed: Attempting to establish reservation and establishment of usufruct through a private instrument when property value exceeds 30 minimum wages. Lei nº 10.406/2002 requires a public deed as a formal validity requirement (Código Civil, art. 108) Lei nº 10.406/2002 — Código Civil, art. 108.
  • Failing to register the deed with the real estate registry: Believing that signing the deed at the notary office completes the process. The in rem right of usufruct legally exists only after real estate registration (Código Civil, art. 1º,245) Lei nº 10.406/2002 — Código Civil, art. 1º.245.
  • Ignoring local tax requirements: Failing to verify state or municipal ITCMD or ITBI tax rates and collection rules. Incorrect payment prevents title qualification.
  • Failing to define usufruct duration: Leaving the deed silent regarding the term of the in rem right during establishment. Without a specified term, legal interpretation defaults to lifetime usufruct, which may not reflect the parties' intentions.
  • **Overlooking the right of survivorship (direito de acrescer):** Failing to specify whether usufruct reserved for a couple accrues to the survivor upon the death of one spouse.
  • Lei nº 10.406/2002 (Brazilian Civil Code), art. 108 — Establishes the requirement of a public deed for creating or modifying in rem rights on real estate valued above 30 minimum wages Lei nº 10.406/2002 — Código Civil, art. 108.
  • Lei nº 10.406/2002 (Brazilian Civil Code), art. 1º,245 — Mandates that transfers of in rem rights over real estate take effect upon registration of title at the real estate registry Lei nº 10.406/2002 — Código Civil, art. 1º.245.
  • Lei nº 8.935/1994, art. 1º — Regulates notary and registry services designed to ensure publicity, authenticity, security, and efficacy of legal acts Lei nº 8.935/1994, art. 1º.
  • Lei nº 8.935/1994, art. 6º — Defines the exclusive powers and duties of notary publics (tabeliães de notas) to execute public deeds Lei nº 8.935/1994, art. 6º.
  • Provimento CNJ nº 149/2023, Book I — Consolidation of the National Code of Normas of the National Corregidor Office of Justice for Extrajudicial Services Provimento CNJ nº 149/2023, Livro I.
  • Provimento CNJ nº 149/2023, Book II — General regulations on the practice of notary and registry services in Brazil Provimento CNJ nº 149/2023, Livro II.
  • Normative note: The Lei dos Registros Públicos (Public Records Law - Law No. 6,015/1973) regulates registration and annotation procedures for property alterations on the property register sheet (matrícula).

For additional official federal regulations, consult the Compiled Text of the Civil Code on the Planalto Portal.

Próximos passos

  • Analyze your estate planning goals: Decide whether your goal is to donate property while retaining the right to live there (reservation) or grant property income to another party while retaining ownership (establishment).
  • Obtain the property register certificate: Request an updated full-text certificate (certidão de matrícula) from the competent real estate registry office.
  • Consult local tax rules: Check with the State Tax Department (for ITCMD) or Municipal Tax Office (for ITBI) to verify tax rates and calculation bases for your act.
  • Schedule an appointment at the notary office: Present the required documents to draft the public deed of reservation and establishment of usufruct.
  • Submit title to the real estate registry: After executing the deed, deliver the certified transcript (traslado) to the real estate registry office for qualification and registration.

Fale com o cartório

The 5th Notary Office of Recife (5º Tabelionato de Notas do Recife) is available to assist you and your family with questions regarding reservation and establishment of usufruct. Our team works to ensure legal certainty, transparency, and respect for your intent in estate planning.

Rodapé editorial

Editorial Team: Notarial Editorial Team of the 5th Notary Office of Recife

Date of last legal review: March 30, 2026

Version: 2.0 PEAN-AEO/GEO

Informational content; does not replace legal advice for specific cases.

Content reviewed in the last 12 months based on current regulations.

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