Não Obstante As Várias Denúncias, O Comitê Organizador Co Rio 2.016 Fará Um Novo campo de Golfe Em Um Local Chamado RISERVA UNO. Gastará Milhões, Enquanto O Itanhangá Golf Club, Por Exemplo, Com Uma Reforma Bem Mais Barata, Atenderia Às Exigências Da Federação Internacional de Golfe E Do Comitê Olímpico Internacional. Ainda Assim, O Tal Terreno Da RISERVA UNO, Em que Será Construído O Campo De Golfe, Tem Várias Pendências Jurídicas, O Que Constitui Um Risco Legal Utilizá-lo. Vejam Abaixo A Íntegra De Uma Opinião Legal Dada Por Um Renomado Escritório de Advocacia Do Rio de Janeiro Apontando Todas As Irregularidades Do RISERVA UNO. Por Que, Então, Querem Fazer o Campo de Golfe Naquele Local? Tirem Suas Próprias Conclusões.
Preliminary and without prejudice legal opinion on the lawsuits related to the property of the land area where the “RISERVA UNO” enterprise is being developed.
1 The undersigned received a copy of a draft of a sale contract of an apartment built at the area of the “RISERVA UNO” enterprise with a request to consider the possible outcome of lawsuits that are registered as a possible encumbrance over the area and, consequently over any and all legal acts of sale and/or others performed by PLARCON CYRELA EMPREENDIMENTOS IMOBILIÁRIOS SPE LTDA., as the said to be landlord of the mentioned area.
2 I would like to indicate firstly that PLARCON CYRELA EMPREENDIMENTOS IMOBILIÁRIOS SPE LTDA., as the seller, mentioned on the contract that only 65% of the land pertains to said company. There is no indication on the document as to whom the remaining 35% pertain.
3 To be faithful to the buyer and as a lawful obligation of the seller it is further indicated on the sale contract that there are at least three registered lawsuits with disputes:
(a) over the rightful possession of the land (Ação de Usucapião);
(b) over the legitimacy of the titles of the land ;
(c) over the legitimacy of the registry of the titles of the land.
4 By having the numbers of registry at the Courts of the referred to lawsuits, we were able to check on the present status of the same, although we have not obtained so far copies of the plea as well as the reasons of the defense as well as documents produced by plaintiffs and defendants. Therefore, the present opinion is given on a entirely without prejudice basis and only considering the prospects on the outcome of the cases and risks involved in respect of any enterprise either by PLARCON or third parties as well as to the buyers of any property on said area.
Lawsuit # 2001.209.006923-6 (# 0007341-86.2001.8.19.0209)
5 The first lawsuit has been registered under the above mentioned numbers at the 3rd Civil Court of Barra da Tijuca on 12/12/2001 and deals with what is called “USOCAPIÃO EXTRAORDINÁRIA”. The right being pursued on said lawsuit is based on article 1.238 of the Civil Code of 2002, as follows:
“Art. 1.238. Aquele que, por quinze anos, sem interrupção, nem oposição, possuir como seu um imóvel, adquire-lhe a propriedade, independentemente de título e boa-fé; podendo requerer ao juiz que assim o declare por sentença, a qual servirá de título para o registro no Cartório de Registro de Imóveis.” (Those that, for fifteen years without interruption or oposition have the possession of a realty as his, acquires the property, irrespective of having a title or bona fide and may request to the Judge that so declare (the property) in a Court’s decision which will serve as title for the registry at the Notary of Registry of Realty.)
6 Plaintiffs (as originally registered) are:
– remains of Eurico Francisco de Mário Olivo
– Paulo Rubens Vieira
– Alberto Hekel Tavares
– Mauricio Evandro Chagas Memoria
– Carlos Eduardo Chagas Memoria
– Rodolpho Pessoa
7 Defendants and assistant of defendant (as originally registered) are:
– Pasquale Mauro and other (wife)
– Plarcon Cyrela Empreendimentos Imobiliários SPE Ltda.
8 A copy of the full development of the case since it was registered at the Court on 12th December 2001 up to the last 23rd May 2011 is attached. Notwithstanding the almost 10 years elapsed so far no decision on the merit of the case has been given. We may comment that on 11th April 2002 the plea was rejected not on the merit but merely for lack of fulfill of procedure formalities and, the decision that rejected the plea as later on fully modified by the Court of Appeal that ordered the Judge to proceed with the analysis of the case and judge the merit.
9 Regretfully, without having in hands copies of the plea and of the defenses so far presented as well as supporting documents, we cannot for sure anticipate what would be the outcome of the case.
10 However, we must consider that a “simple” case where either the plaintiffs or the defendants had a very clear right would not take so long to be judged at the first instance. A claim based on article 1.238 of the Civil Code must be supported by documents and/or testimonies.
11 It is also to be noted that on the same case defendants presented an incidental proceedings (“Incidente de Falsidade”) where they alleged that the documents produced by plaintiffs were a forgery (the case was registered at the same 3rd Civil Court of Barra da Tijuca under # 2005.209.005932-0B or presently # 006227-83.8.19.0209). Since their allegation was not very clear the Court ordered defendants to properly inform which document was a forgery and the reasons why they think so. Defendants not only failed to comply with the Court’s request but asked for the dismissal of their incidental proceedings on alleged forgery of documents. We do not know the reasons why they asked for the dismissal of their incidental proceedings, but this may be an indication that they could have difficulties to prove their allegation and were not prepared to risk a future penalty being imposed by the Court for bad faith litigation.
12 Also in relation to this case defendants pursued another incidental proceedings this time related to the value attributed to the case by the plaintiffs. Such case was registered on the same 3rd Civil Court of Barra da Tijuca under # 2005.209.005932-0C or presently under #0006228-68.2005.8.19.0209. This plea from the defendants was also rejected by the Court and there is no indication that an appeal was presented against said decision.
Lawsuit #2005.209.005932-0 (#0006225-16.2005.8.19.0209)
(Anulação de Título)
13 Again without having in hands copies of the plea and of the defense it is difficult to render a proper legal opinion on the prospects of the case.
14 However, it does appear that the objective of the present lawsuit is to have the title of property of Pasquale Mauro and others declared as void and consequently all transfers of property resulting from sales based on said original title of landlord.
15 A copy of the developments of the case in Court is also enclosed. The case was brought to the 3rd Civil Court of Barra da Tijuca on 18th July 2005..
16 Plaintiffs (as originally registered) are:
– Alberto Hekel Tavares
– Carlos Eduardo Chagas Memória
17 Defendants (as originally registered) and assistant are:
– Pasquale Mauro
– Remains of Holophernes Castro
– Remains of Lydia Teixeira Castro
– Plarcon Cyrela Empreendimentos Imobiliários SPE Ltda.
18 So far no decision on the merit has been given. The only developments that should be mentioned would be the following:
19 Since second and third defendants could not be found to be properly summoned, the Court ordered their summons to be made by notice of the case on the press. They failed to attend the summons and on the last 18th January 2011 were declared as being in default.
20 On the last 10th March 2011 the Court ordered the plaintiffs to produce their counter reasons of defense which was already produced.
21 The next step on this case should be for the parties to indicate what evidences they intend to present, inclusive graphological exam of documents/signatures.
22 In our opinion it will take a long time for this case to be judged at the first instance Court.
Lawsuit # 2005.001.108726-0 (#0107037-11.2005.8.19.0001)
(Retificação ou Cancelamento de Registro Imobiliário)
23 The present lawsuit has been registered at the Court of Public Registries on 2nd September 2005 and the purpose of the plea is to cancel a registry at the Registry of Realty.
24 Plaintiff (as registered) is:
– Ubirajara Gouvea Emidio
25 Defendants are:
– Pasquale Mauro
– Banco de Crédito Móvel S/A
26 On 4th August 2006 the Court dismissed the case without judging considering that plaintiff failed to comply with an order to produce a certain document in full.
27 Plaintiff appealed against the decision and the appeal was considered as produced after the legal time limit and so denied by the Court. An interlocutory appeal was presented to the Court of Appeal that considered that the original appeal was presented within the legal time and ordered the whole case to be remitted to the Court of Appeal for review of the decision that had it dismissed. The case was forwarded to the Court of Appeal on the last 11th May 2011.
28 Again, without having in hands copies of the plea and reasons of defense we cannot give you an opinion on the prospects of a future judgment on the merit.
29 It is clear from the above that the legal title of the land is under dispute. Unless the parties come to an agreement, Plarcon Cyrela’s title and right to sell is at risk as well as any title of third parties that may have origin on the Pasquale Mauro/Plarcon Cyrela titles over the land.
30 I would certainly not recommend a client to make any investment over a land which landlord title is under dispute.