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Informal practice still appears in financed property negotiations and is often sold as a shortcut to “assume” installments, without the security of registration.
A private agreement, signed outside the bank and without registry in a notary office, still frequently appears in financed property negotiations in Brazil.
Known as a drawer contract, it is often presented as a shortcut to “assume” an ongoing financing.
However, on paper, the property remains in the name of the original borrower, and the financial institution continues to view the person who signed the financing contract as the debtor.
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This mismatch between what the parties agree on and what is formally registered creates a fertile ground for conflicts.
The consequence can range from obstacles to obtaining a deed and selling the asset to more serious situations, such as debt execution and auction, depending on the type of guarantee and the progress of the contract.
How the drawer contract works in financed property
In practice, a drawer contract is the purchase and sale made by private instrument, between the financing holder and a third party, without the bank’s participation and without the transfer registered in the property’s registry.
The buyer starts paying the installments, but the financing and formal ownership remain linked to the seller.
Many people resort to this path when they cannot get credit approval for a regular transfer, when they want to avoid notary and tax costs, or when they fear the financial institution will impose new conditions on the contract.
In some cases, the very history of informality in the real estate market fuels the feeling that “everyone does it” and that a signed receipt resolves the issue.
Even so, what seems simple in the short term becomes a problem because the legal security of the property, in Brazil, depends on a central point: what is registered in the Real Estate Registry Office.
Without this, the buyer is left with a fragile right, and the seller remains exposed to responsibilities they thought were concluded.
Why banks and the SFH consider the operation irregular
The transfer of rights and obligations in contracts of the Housing Finance System (SFH) has its own rules.
The Law No. 8,004/1990, in its Article 1, provides the possibility for the borrower to transfer to third parties the rights and obligations of the financing, but conditions this movement to legal requirements and, in practice, to formalization with the financing institution.
With the Law No. 10,150/2000, the topic gained an important aspect: it paved the way for the regularization of certain old contracts by addressing situations where transfer proposals were formalized up to a deadline.
That is why, from the financial agent’s point of view, the “drawer contract” is usually classified as an irregular operation, as it practically changes who pays and occupies the property without the creditor approving the new responsible party and without the transfer following the required formal flow.
This understanding also appears in materials and analyses that reflect Caixa’s position on the subject.
Property registration: why the title continues to rule
The main warning is simple: without a deed and registration, the buyer does not become the owner in the eyes of third parties.
The person who remains as the owner, for legal purposes, is the one listed on the title. Consequently, the asset can be affected by problems that have nothing to do with the new occupant.
If the seller inherits debts and faces legal charges, the property may be subject to measures such as seizure, depending on the case and the type of obligation discussed.
Moreover, if the formal owner sells the same property again, the conflict shifts to a dispute over documents, deadlines, and good faith, with an uncertain and often slow outcome.
Another point that often surprises is the inventory. If the original borrower dies, the property may enter the estate and be subject to discussions with heirs, even if the buyer has been paying installments for years.
The informality does not disappear; it merely postpones the settlement.
Risks for buyer and seller in the drawer contract
For the buyer, the drawer contract often means paying for an asset without having control over the title.
This complicates everything from obtaining a deed to resale, because the future buyer, the notary, and the bank will demand documentary regularity.
Meanwhile, any default on the original contract may lead to charges against the formal debtor, with direct effects on the property.
As for the seller, they remain linked to the financing and, in many situations, continue to be associated with obligations related to the asset.
Depending on the scenario, condominium charges, taxes, and legal disputes may fall upon the person who still appears as the owner, even if they no longer possess the property.
The apparent “exit” from the deal, therefore, can become a source of headaches for an indefinite period.
STJ and informal contracts: what influences decisions
The Superior Court of Justice (STJ) has already analyzed the topic in different contexts and, in certain situations, recognized the effects of informal contracts to avoid injustices or resolve established facts.
A line appears when the financing is paid off, and the discussion focuses on the possibility of regularizing the situation, especially if there is no harm to the financial agent, although this depends on the set of evidence and the legal framework of the case.
On another front, the STJ admitted that a third party who acquired the property through an informal contract may have a legal interest in paying overdue installments and preventing the property from going to auction, because the focus of the execution is the satisfaction of the overdue debt.
In this logic, the debate does not necessarily validate the contract but recognizes the legitimacy of the third party to prevent the loss of the property by settling the charged debt.
On the other hand, decisions also reinforce limits: the jurisprudence itself mentions that the 2000 legislation allowed regularization in a specific time frame, and assignments made outside these scenarios face barriers, including the requirement of consent from the financial agent.
Key date in SFH: October 25, 1996
A recurring point in judgments and debates is the date of October 25, 1996.
Law No. 10,150/2000 ensured, in specific terms, the right of option for the completion of operations for prospective buyers whose transfer proposals were formalized with SFH agents by this date, subject to the established conditions.
In practice, this means that there are old cases where the legislation opened a door to regularize established situations, while later operations remain subject to the requirements of consent and formalization.
State courts, when judging recent disputes, have reiterated this interpretation by denying broad protection for assignments made many years after the legal milestone.
FCVS, subrogation, and debtor substitution: where the confusion lies
The debate over FCVS (Salary Variation Compensation Fund) arises because, historically, the fund’s coverage influenced settlement conditions and discussions on subrogation in certain SFH contracts.
The legislation and analyses of the topic record that, in certain hypotheses and periods, the treatment of the “informal contract holder” can be equated to that of the borrower for effects related to the FCVS, provided that requirements and time frames are met.
Even so, the central point remains: the safe rule to avoid litigation is to align possession, payment, and formal ownership on the same track, with creditor approval when required and with proper registration formalization.
Regularization and secure purchase: what avoids headaches
When the property is financed, the route of least risk is to seek regular transfer with the bank, through instruments accepted by the institution, and only proceed with the purchase when there are clear conditions to formalize ownership and register the transaction.
If this is not possible, the buyer needs to know that assuming installments does not equate to acquiring the property in the registry, and the bill may come years later, at a time when documentary security is most needed.
