By Eduardo Cramer Ono

Reflecting on the destination of assets after death is, at times, a delicate task. However, succession planning is essential to prevent family disputes, ensure that the current owner’s wishes are observed, reduce bureaucracy, and safeguard patrimonial continuity.

In this context, alongside traditional instruments such as wills, gifts with reservation of usufruct, and partition in life, the surface right (direito de superfície) emerges as an effective and still little-explored alternative in succession planning.

Regulated by the Civil Code (Law No. 10,406/2002), the surface right allows the owner of a property to grant to another person (the superficiary), either free of charge or for consideration, the right to build or plant on the property for a fixed term.

The City Statute (Law No. 10,257/2001), which also regulates this legal institution, goes further by authorizing the use not only of the land surface, but also of the subsoil and the airspace related to the plot, including for an indefinite term (which does not mean that the surface right may acquire a perpetual nature).

Its creation is relatively simple: the owner and the superficiary must execute a public deed and register it with the competent land registry office. This document must set out the price and method of payment (if the grant is for consideration), the term of duration (if stipulated), and the intended use of the property (if defined by the parties).

Likewise, the extinction of the surface right is simple and may occur, for example, upon expiry of the stipulated term or due to non-compliance with the agreed obligations.

In the succession context, the surface right may be strategically used to delegate the management of the property to whoever the owner considers more capable, without transferring ownership to that person. This may be useful to generate income for the heirs, whether through consideration paid by the superficiary or through participation in the natural or civil fruits arising from the use of the property; and to preserve and even expand the estate, allowing constructions or plantations carried out by the superficiary to revert to the heirs, without the need to indemnify the superficiary (unless otherwise provided for in the deed of institution).

Part of the legal scholarship even admits the possibility of establishing the surface right by means of a will, thereby expanding its usefulness in succession planning.

To illustrate the use of this instrument, imagine that the owner of a rural property is no longer interested in managing his crops, and that his heirs share this lack of interest. In such a case, the owner could institute a surface right in favor of a trusted employee, who would manage the crops and pay the owner or his heirs a consideration for the use of the property, similarly to a lease, but elevated to the level of a real right, of a public nature and enforceable against third parties. Not only that: depending on what is contractually stipulated, the owner or his heirs could acquire the constructions and/or plantations carried out upon termination of the surface right, without necessarily indemnifying the superficiary.

Although, at first glance, the surface right may resemble lease and rural leasehold, these legal figures must not be confused, especially because the surface right is not subject to the rules on eviction, does not admit the filing of a renewal action, and allows the price to be fixed in currency, which is prohibited, for example, in rural property lease agreements.

Therefore, although still little used in the context of succession planning, the surface right proves to be an effective and flexible alternative to ensure patrimonial continuity. Alongside other legal instruments, it can be strategically employed to give effect to the owner’s wishes, facilitate asset management, and prevent conflicts among heirs.