Legal problems when buying property: which are the most serious, and how can certificates help identify them?

Learning about issues before paying allows the buyer to assess conditions, documents and alternatives. Due diligence does not promise a risk-free purchase: it informs decisions before obligations become difficult to reverse.

Real estate legal risk is any pre-existing situation — a debt, a lawsuit, a registry defect — capable of reaching the property even after the sale. We will walk through the four most serious ones, the certificates that reveal them, and how to structure the contract when one of them shows up.

What is fraude à execução — and why is it risk number 1?

Fraude à execução can make a transfer ineffective against a creditor under CPC article 792. STJ Súmula 375 generally requires a registered attachment or proof of the purchaser’s bad faith. Tax enforcement has its own regime: CTN article 185 addresses registered tax debt and sufficient reserved assets; Súmula 375 does not automatically apply. Law 13,097/2015 article 54 also protects reliance on the property register: additional court certificates are not a general prerequisite for validity or good faith. Checks should match the risks and statutory exceptions.

What is loss of title to a third party (evicção) — and how can it take the property away from someone who bought it properly?

Evicção means total or partial loss of the asset because of a third party’s prior right. For transactions for value, Civil Code articles 447 onward govern the seller’s liability, which also depends on contractual terms and acquisition circumstances. Invalid transfers and competing prior rights require investigation. Recovery of the price, expenses and damages follows statutory requirements and may be hindered by seller insolvency. The relevant chain of title should be examined according to the instruments and warning signs, not a universal 15–20-year minimum.

Which debts follow the property, not the owner?

The purchaser is liable for the transferor’s condominium debts, including interest and penalties (Civil Code article 1,345). Property-related tax claims may pass to the purchaser under CTN article 130, subject to proof of payment in the instrument; in a judicial auction, they attach to the price. Mortgages and fiduciary security also require specific treatment. Review municipal tax status, condominium statements and recorded burdens; agreements between buyer and seller do not necessarily bind creditors.

Which registry defects stall or void the purchase?

Unrecorded building area, discrepancies between records and reality, missing municipal documents and restrictions on disposal can hinder a purchase. A sale from an ancestor to a descendant requires the other descendants’ and seller’s spouse’s consent, with the spouse exception for mandatory separation of property in article 496. This is distinct from article 1,647’s general spousal-consent rules and exceptions. Examine the register, CNIB where applicable, planning records and title together.

Hypothetical example: a house in Limão

Imagine Cláudio negotiating a R$480,000 house while the seller faces R$90,000 in tax enforcement, an unrecorded annex and two unpaid IPTU instalments. Direct documented payment, retained funds and regularisation before closing may be considered, but clauses alone do not eliminate tax fraud or registry restrictions. Debt status, solvency, restrictions and building regularisation must be assessed. The purchase may be conditioned, restructured or abandoned. This hypothetical example promises no discount, savings or outcome.

The most common (and costly) mistakes

1. Checking only the property. Risk: overlooking relevant litigation, capacity or the seller’s authority; the scope of checks depends on the case.
2. Accepting outdated certificates, or from a single judicial district. A seller with previous addresses calls for a wider search. Risk: a relevant lawsuit flying under the radar.
3. Ignoring marital status and the property regime. Risk: missing consent required by article 1,647, subject to exceptions such as absolute separation of property and possible judicial authorisation.
4. Leaving an issue for later. Risk: paying without an effective way to resolve it.

Document checklist for property due diligence

• Current property record, burdens and relevant earlier instruments;
• Civil, tax, labour and protested-debt certificates according to the parties, jurisdictions and risks;
• Real estate tax clearance certificate (São Paulo City Hall) and condominium clearance;
• Disposal restrictions and, for a corporate seller, existence and authority; partner checks according to risk;
• Occupancy permit (habite-se) and registry annotation of the built area;
• A contract with withholdings and conditions precedent tied to each issue found.

Frequently asked questions

Can I lose the property I bought because of the previous owner's debts?

It can happen, but not every seller debt automatically affects the property. Fraude à execução, special tax-enforcement rules and property-related debts require analysis. Certificates and records help but do not alone exclude every risk; statutory register protections and exceptions matter.

What is evicção (loss of title to a third party) in a property purchase?

It means total or partial loss of the asset because of a third party’s prior right. For transactions for value, Civil Code articles 447 onward govern seller liability, depending on the contract and circumstances. Reviewing title records helps identify issues but does not guarantee freedom from disputes.

Which certificates about the seller should I request before buying a property?

There is no universal list. Civil, tax, labour and protested-debt certificates may form part of proportionate checks alongside identity, marital status and authority. Law 13,097/2015 article 54 does not require additional court certificates as a general condition of validity or good faith. For companies, verify existence and authority; extending searches to partners depends on structure and risk.

Is it possible to buy a property with outstanding IPTU or condominium debt?

It may be possible if debts are identified and can be safely paid or covered. Buyer–seller clauses do not by themselves prevent a legally entitled creditor from collecting. Direct payment, retained funds, security and evidence of discharge must be coordinated with the deed and registration under condominium and tax rules.

When should I see a lawyer to avoid legal problems in a purchase?

Before a binding offer, deposit or signature. Review helps establish conditions and payment arrangements while negotiation is still possible. It does not replace registry, notarial, tax, planning and financial checks or guarantee no litigation.

Documents help identify risks before signing

Certificates and title instruments provide important clues, but not every risk will be visible. The goal is enough information to decide, condition the transaction and document diligent conduct before paying.

At Falchet e Marques Sociedade de Advogados, in São Paulo on Avenida Paulista, we investigate the seller, property and chain of title and structure conditions and payments suited to the identified risks.

Talk to our team on WhatsApp: +55 11 95901-1854 — send us the property record or the address of the property under negotiation and receive the certificate map for your case.