The Superior Court of Justice has established an understanding that the mere indication of real estates for the payment of capital by members is not enough to effect the transfer of property to the company. According to the Court, the transfer must be formalized in the competent Real Estate Registry Office.
According to the Rapporteur of the STJ case, Minister Marco Aurélio Bellize, “the stipulation established in the articles of organization for the payment of capital by means of a duly individualized real estate indicated by the member, per se, does not operate the transfer of property of the asset to the business company”. The Rapporteur Minister also recalled that: “In the case of real estate, as in the present case, the incorporation of the asset into the business company will have to observe in detail the precepts of article 1,245 of the Civil Code, which provides: the property is transferred between living parties through the registration of the translative instrument in the real estate registry”.
Thus, as long as the registration of the articles of organization filed before the Board of Trade is not effected in the Real Estate Registry Office, as determined by article 64 of Law 8,934/94, the asset shall not be effectively considered as part of the equity of the company.
“Although the filing of the articles of organization is capable of announce the payment of real estate to the company’s capital, the document that effectively transfers the property is the enrollment in the RGI, being the RGI the responsible for proving the situation of the real estate before third parties, which favors transparency and legal certainty in the company’s activities,” states Bruno Zaroni, founding member of Zaroni Advogados.
The STJ, in this specific case, decided that the company would not be a legitimate party, on levy of execution, in order to remove the levy of an asset indicated by a member for the payment of the capital, since it was not the owner of that asset, which did not had been formally transferred by the partner via RGI.