The National Council of Justice (CNJ), through CNJ Provision 94 of March 28, 2020, regulated the operation of land registries during the quarantine period due to the coronavirus.
Previously, with the publication of CNJ Recommendation No. 45 of March 17, 2020 and CNJ Provision No. 91 of 03.22.2020, in summary, the CNJ had already determined the Corregedorias of the Courts of Justice of the States and the Federal District to adopt preventive measures to reduce the risks of contamination with the new coronavirus by the delegates and/or responsible persons and users of the Brazilian extrajudicial service (Notaries and Recorders), among which: (i) the suspension or reduction of external business hours and attendance to the public, in accordance with the guidelines of the local and national Public Health authorities; (ii) authorize the remote work of the serventias’ employees, as long as it is compatible with the extrajudicial service provision modality; (iii) designation of an on-call regime in case of suspension of extrajudicial activities, observing the care established by the health authorities in contact with the public, for urgent requests such as birth and death certificates; and (iv) suspension of deadlines for the practice of notarial and registry acts, and the reason for the suspension must be noted in the respective books and records.
Considering the essentiality of real estate registration for the exercise of the fundamental right to property, the security of credit and real guarantees, as well as the need to preserve the health of officials, agents and users of real estate registration, CNJ Provision 94 determined that:
- The service in the real estate registry will be done on all working days, preferably by remote on-call, being up to the Corregedorias of the States to regulate its operation. In view of the need to maintain continuity and its compulsory nature, where it is not possible to immediately implement remote assistance, and until this becomes effective, exceptionally should be adopted the face-to-face service, observing the care determined by the health authorities for essential services, and the administrative measures that are determined by the General Internal Affairs of the States, or by the competent Court. Remote duty will be compulsory when the person in charge, substitute, surrogate, or collaborator, is infected by COVID-19;
- Distance duty will last at least four hours, and face-to-face duty, when adopted on an exceptional basis, will last no less than two hours. The use of couriers, messengers, or any other secure means is also authorized for the receipt and return of physical documents destined for the practice of acts during on-call services, with the issuing of a receipt for the receipt of documents and the maintenance of control of documents returned to service users. The Registrars or the Shared Electronic Service Centers may offer a service for locating the license plate numbers, based on a consultation of the property’s address in the Real Indicator – Book 4. Registrars may also, at their prudent discretion and under their responsibility, receive documents in electronic form by other means that prove the authorship and integrity of the file;
- Remote on-call services will be provided by directing the interested party to use the Shared Electronic Services Center of the respective federation unit for certificate requests and to send titles for notarization and other acts. In the states of São Paulo, Paraná, Rio de Janeiro and others, access to the center is through the registradores.org site, and in Minas Gerais through the site www.crimg.com.br, where it is possible to request registration acts in digital media in the manner specified;
- During the on-duty regime, the assistance must be maintained through the means of communication adopted for remote assistance, including landline and cell phone numbers, WhatsApp and Skype addresses, and any others that are available for public assistance, and it is the Registrar’s obligation to provide and maintain the physical and technological structures necessary and appropriate for teleworking;
- For the duration of the quarantine resulting from a Public Health Emergency of National Importance (ESPIN), all Registrars must receive the natural-digital and digitized titles with technical standards which are electronically forwarded to the unit in charge, through the shared electronic services central offices, and process them under the terms of the Public Records Law – Law 6.015/73.
- In this sense, they are considered natively digital titles: (i) the public or private document generated electronically in PDF/A and signed with an ICP-Brasil Digital Certificate by all signatories and witnesses; (ii) the certificate or notarial record generated electronically in PDF/A or XML and signed by a notary public, his substitute or agent; (iii) the abstract of a private instrument with the force of a public deed, executed by financial agents authorized to operate in the ambit of the SFH/SFI, by the Central Bank of Brazil; (iv) the credit bills issued in book-entry form, according to the law; (v) the document dematerialized by any notary or registrar, generated in PDF/A and signed by him, his substitutes or agents with an ICP Brazil Digital Certificate; (vi) the letters of adjudication of judicial decisions, among which are the partition deeds, letters of adjudication and auction, registration orders, annotation and rectification, through direct access by the Real Estate Registry official to the electronic judicial process, upon request by the interested party;
- And digitized titles with technical standards are considered those that are digitized in accordance with the criteria established in Art. 5 of Decree No. 10,278 of March 18, 2020, i.e: (i) that it is digitally signed with digital certification to the standard of the Brazilian Public Key Infrastructure-ICP-Brazil, in order to ensure the authorship of the scan and the integrity of the document and its metadata; (ii) that follows the minimum technical standards foreseen in Annex I of the mentioned decree; and (iii) that contains, as a minimum, the metadata specified in Annex II of that decree;
- The Ruling also determines that in the states that do not have an electronic services center in operation, or the existing one does not offer the services of certificate requests or electronic records of titles, electronic traffic will be conducted through the shared electronic services center that is already in operation in another state of the federation;
- The Real Estate Registry Officer, if he suspects that the title is false, may demand that the original be presented and, if in doubt, may request the Judge, in the form of the law, to take the necessary steps to clarify the fact;
- The Ruling determines that when opening and closing the duty shift, as well as at every interval of one hour at the most, the Registrars must check whether there is any communication of remittance of titles for prenotation and requests for certificates for their prompt compliance, and that the received titles must be prenotified, observing the control of contradictory rights and the registry principles for the purpose of issuing certificates and simultaneous processing of such titles or even excluding rights over the same property;
- The digital certificate of complete contents requested during business hours, indicating the registration or record number in Book 3, must be issued and made available within a maximum of two hours, except in the case of handwritten deeds, whose issuance cannot be delayed for more than five days, and will be available for download by the applicant for a minimum period of 30 (thirty) days;
- Under the terms of a 11, while the duty system lasts, the validity periods for the prenotation, qualification, and practice of registration acts will be counted double, except for the periods for the issue of certificates and for the registration of contracts of real guarantees on movable and immovable property that are a condition for the release of financing granted by credit institutions.
- Finally, the rules of the provision are valid only until April 30, 2020, and may be extended by a new act of the CNJ, as long as the exceptional situation that led to its issue persists.
For its part, and along the same lines, specifically for our state of São Paulo, the Corregedoria Geral da Justiça had already edited the Provimento CG Nº 08/2020, which provides for prevention measures to be adopted in the Extrajudicial Notary and Registration Services of the State of São Paulo in relation to the COVID-19 virus, which is in line with what was determined by the CNJ in Provision 94. Under the terms of this provision, it was authorized the immediate suspension of the operation of the units of the Extrajudicial Notary and Registration Services of the State of São Paulo; the suspension of the deadlines for the practice of notarial and registration acts; the determination that these services will be provided on an on-call basis, which may be in person, virtual, or by other means of remote service, including landline and mobile telephone numbers, WhatsApp and Skype addresses, and any others that may be available for public service, which will be announced in a poster posted on the unit’s door, easily visible, on the Internet pages and, when possible, in the Electronic Central Offices of the respective service specialties.
As the case may be, and at the discretion of the officer or deputy in charge, on-call duty will last no less than two hours, and off-call duty will last no less than four hours. The shifts by the units suspending operation will cover: (i) the issuing of certificates; (ii) birth and death records; (iii) the habilitation and registration of marriages when the urgency is justified; (iv) the registration of contracts of real guarantees on movable and immovable assets that are a condition for the release of financing granted by credit institutions, observing the control of the adversary and the chronological order of presentation of the titles; (v) protest stays; (vi) the transfer of the installments of the emoluments to the creditors foreseen in State Law 11.331/2002; (vii) the communications to the Extrajudicial Portal necessary for the generation of guides and collection of the fees due to the Special Expense Fund of the Court of Justice of the State of São Paulo; and (viii) the other notarial and registry acts that are compatible with the staff structure.
Finally, the Communication from the General Internal Affairs Office of the Justice of the State of São Paulo nº 94, clarified, for general knowledge, “that the extrajudicial notary and registry services are public services and are intended to ensure legal security and allow the exercise of rights that are essential, such as those related to birth, death and marriage registrations“They are regulated by special legislation and by the norms of the CNJ and of the Corregedoria Geral da Justiça, in accordance with art. 236 of the Federal Constitution.
The Real Estate Law team at De Luca, Derenusson, Schuttoff Advogados is available for further clarifications and assistance in cases involving real estate contracts and negotiations, including while the preventive measures for reducing the risks of contamination with the new coronavirus last.