Unrecorded side agreement: the risks and how to regularize a property bought without registration?

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Buying a property "off the books" (no gaveta) is one of the most common — and riskiest — situations in the Brazilian real estate market. The person pays, receives the keys, moves in, lives there for years... but, at the registry, the property is still in someone else's name. And this, sooner or later, tends to cause problems.

Several regularization routes exist, depending on the agreement, property record, payment and restrictions. This guide compares a voluntary deed, compulsory adjudication of title and usucapião, with a hypothetical example; no route or outcome is automatic.

What is an unrecorded side agreement and why does it not transfer ownership?

An unrecorded side agreement is the popular name for the private purchase and sale agreement (or assignment of rights) for a property that was never taken to registration. The parties agree on the sale, the buyer pays and takes possession, but the transfer is not recorded in the property record (matrícula) — the document stays "in the drawer."

For real estate transfers between living parties, the general rule is registration of the title in the property record (Article 1,245 of the Brazilian Civil Code). Article 108 may require a public deed unless another title is legally permitted. Missing registration does not erase contractual rights, but does not itself make the buyer the registered owner.

What are the risks of an unrecorded side agreement?

Holding a property only under an unrecorded side agreement exposes the buyer to concrete risks:

• Attachment for the registered owner’s debts: buyers may need to prove their acquisition and possession. STJ Súmula 84 permits third-party objections based on possession arising from an unregistered purchase commitment, subject to the facts and evidence.

• Probate: if the seller dies, the property may be listed in their estate and disputed by the heirs.

• Resale: the seller (or their heirs) may, in bad faith, sell the property again to a third party who registers first.

• Credit and security interests: buyers who are not registered owners cannot freely create proprietary security interests as owners.

• Difficulty of proof and of transfer: it becomes harder to prove ownership and to transfer the property to heirs with security.

An old agreement does not automatically correct the record. Early document review reduces the risk of lost evidence and helps identify a registrable title.

For preliminary guidance, use our usucapião checker and property regularization diagnosis. These tools do not replace individual document review.

How to regularize: compulsory adjudication of title or adverse possession?

There is no automatic either/or. A voluntary deed followed by registration may suffice where the parties or successors cooperate and the documents are regular. Otherwise, examine:

1. Compulsory adjudication of title. This rests on a contractual duty to transfer, the buyer’s performance and the documentary chain. A seller’s death or absence does not automatically exclude it: successors and notification options must be examined. Court proceedings and the out-of-court procedure under Article 216-B of the Public Records Act, introduced by Law 14,382/2022, have their own requirements. STJ Súmula 239 dispenses with prior registration of the purchase commitment, not the other conditions or proof.

2. Usucapião (Brazilian adverse possession). This is original acquisition through qualifying possession for the relevant statutory period. A private agreement may be evidence and, in some cases, just title for ordinary usucapião, which also requires good faith. Extraordinary and special categories have their own conditions. The out-of-court route follows Article 216-A; an absent seller or lack of dispute alone is insufficient.

Boundary correction, construction regularization, estate-related steps or lender consent may also be needed. The route depends on the agreement, record, payment and possession together.

A practical example: Mr. Nogueira's apartment

Hypothetical example: nine years ago, Mr. Nogueira bought a São Paulo apartment by private agreement from a seller who acquired it from the developer. He paid in full and lives there, but did not complete registration. The seller moved abroad and stopped responding.

The documentary chain and payment justify examining compulsory adjudication of title, including the out-of-court route, after checking the property, assignments, absence of an exercisable withdrawal right, notification and other requirements. Usucapião is an alternative only if a statutory category is satisfied: nine years and an agreement alone do not establish entitlement. The goal is a registrable title, without guaranteed timing or outcome.

The most common (and costly) mistakes

• Assuming the agreement is enough. Without registration, you are not the formal owner — and the risks remain.

• Putting it off. The more time passes, the greater the risk of the seller's death, attachment or resale.

• Choosing the wrong route. Trying adverse possession when adjudication was appropriate (or vice versa) delays and increases the cost of regularization.

• Losing the documentation. The agreement, receipts and proof of payment are essential — keep everything.

• Buying a new property off the books without checking. Before any purchase, check the property record and the seller's standing.

Checklist: to regularize an unrecorded side agreement

• Locate the agreement and all the proof of payment.

• Obtain the updated property record (matrícula) and check who the registered titleholder is.

• Identify who sold and whether there is a chain up to the registered owner.

• Gather proof of possession and its duration (utility bills, property tax/IPTU, receipts).

• Compare a voluntary deed, compulsory adjudication of title and usucapião, including taxes, debts, restrictions and preliminary steps.

• Seek a real estate lawyer to conduct the regularization through to registration.

Frequently asked questions about the unrecorded side agreement

What is an unrecorded side agreement (contrato de gaveta)?

It is the popular name for a private purchase and sale (or assignment) agreement for a property that was never taken to registration. The parties agree on the sale, the buyer pays and starts living in the property, but the transfer is not registered in the property record (matrícula) — so, on paper, the seller remains the owner. It is very common, but insecure: without registration, ownership does not transfer, and the buyer is exposed to a range of risks.

Does an unrecorded side agreement transfer ownership of the property?

Generally, no. Real estate transfers between living parties require registration of the title (Article 1,245 of the Brazilian Civil Code). The agreement may support a right to demand a deed and possessory rights, but is not itself registered ownership. Check whether a public deed or another legally permitted title is required.

What are the risks of an unrecorded side agreement?

Attachment, resale or succession disputes can arise while another person remains on the register. Buyers may have contractual rights and defenses, including third-party objections depending on evidence, but must enforce them. Missing registration also complicates security interests and clear registered title.

How do you regularize a property bought through an unrecorded side agreement?

Compare a voluntary deed, compulsory adjudication of title and usucapião, alongside preliminary regularization. Adjudication requires a valid duty to transfer and the relevant conditions, through court or Article 216-B of the Public Records Act. Usucapião requires qualifying possession under its statutory category. A deceased or absent seller does not make usucapião compulsory.

What is the difference between adverse possession and compulsory adjudication of title?

Adjudication rests on a contractual obligation to transfer and proof of its requirements. Usucapião is original acquisition through qualifying possession for the applicable statutory period. A private agreement may be evidence and sometimes just title, but does not make every occupation eligible.

Is it worth seeking an attorney to regularize an unrecorded side agreement in São Paulo?

Yes. Review the record, agreement, assignments, payment, possession, debts and parties’ circumstances, especially before paying the balance, reselling, seeking finance or responding to attachment or refusal. A lawyer identifies viable routes without promising timing or results.

Turn your agreement into registered ownership

Regularization seeks a registrable title where the law and evidence permit. It reduces documentary uncertainty and facilitates future transactions, but does not eliminate every risk or guarantee credit.

The solution may involve a voluntary deed, compulsory adjudication of title, usucapião or preliminary steps. The transaction history and documents determine the route, not merely the agreement’s age.

At Falchet e Marques Sociedade de Advogados, in São Paulo (Av. Paulista), we handle property regularization, compulsory adjudication of title and usucapião, from document review to the appropriate registration procedure. Individual assessment helps identify obstacles before they become more serious.

Talk to our team on WhatsApp: +55 11 95901-1854 — and find out the best route to regularize your property.