By André Ferronato Girelli and Anna Claudia Wipieski
The real estate structure of a project rarely takes center stage in the early phases of infrastructure developments. At this stage, concerns related to regulatory and engineering aspects, as well as securing the resources needed for project development, tend to prevail, while the real estate component is often treated as ancillary.
This approach, although common, reveals one of the most sensitive and quietly decisive factors for the success or fragility of a project. In sectors such as energy, data centers, telecommunications, logistics, and operational support assets, the alignment between the legal instrument and the project’s economic logic is often critical for its efficient execution.
In fact, in operations of this nature, the real estate asset is not a neutral factor, as it influences access to financing, conditions risk allocation, impacts economic and tax efficiency, and defines the degree of autonomy available to the investor throughout the entire lifecycle of the project. Therefore, the decision on how to structure it—whether through property acquisition, establishment of surface rights, or the adoption of atypical long-term agreements such as built-to-suit contracts—cannot be treated as a secondary issue. It is a strategic architecture decision.
More than defining ownership, this choice determines who controls the asset in stress scenarios, who captures value during expansion cycles, and who absorbs the effects of potential corporate restructurings. In environments with multiple stakeholders—such as investors, operators, lenders, and landowners—the absence of a consistent real estate framework tends to create undesirable dependencies, areas of ambiguity, and latent conflicts that emerge precisely when predictability is most needed.
Property acquisition remains the most intuitive solution and, in many cases, is appropriate for specific assets with a long-term vocation. Its main advantage lies in full control over the asset, with broad predictability regarding use, expansion, and the establishment of real guarantees, especially necessary in more traditional financing structures. On the other hand, this choice often entails significant capital immobilization, with direct impacts on the efficiency of resource allocation within the project’s CAPEX dynamics.
At this point, decisions that may appear conservative begin to compete with more sophisticated alternatives that avoid replicating a binary “buy or lease” logic and allow for the construction of customized legal solutions for assets where control over use matters more than ownership of the land.
One such customized solution is the right of superficies (surface rights), provided for in the Civil Code (articles 1,369 to 1,377) and also in the City Statute (Law No. 10,257/2001), which allows for the separation between land ownership and the physical accession (construction or plantation) where economic exploitation occurs. This enables structures in which operational control is preserved without the need to acquire the land. Once registered in the property’s registry, it grants an in rem right to the superficiary (enforceable against the owner and third parties) and allows for arrangements distinct from traditional leases, enabling a logic particularly suited to structured projects that recommend the segregation between land ownership and operations, or in which investors, operators, and landowners play different roles and are exposed to distinct risks.
Even so, the use of surface rights remains below its potential. In many cases, not due to inadequacy, but rather decision-making inertia or a mistaken perception of complexity. In a scenario that demands capital efficiency, flexibility, and governance, ignoring this tool may result in the loss of relevant competitive advantages.
Similarly, built-to-suit agreements, provided for in the Tenancy Law (article 54-A of Law No. 8,245/1991), allow the owner to acquire, build, or substantially refurbish a property according to the specifications of the future occupant who will operate it, with the terms freely agreed upon between the parties prevailing.
From the occupant’s perspective, this model shifts a significant portion of the real estate investment to the developer partner and converts occupancy costs into a predictable contractual flow, potentially more aligned with an OPEX logic or, at least, with less immediate pressure on the project’s own CAPEX. In return, the occupant assumes a long-term contractual commitment, with limited flexibility for early exit and usually without the ability to offer the property as collateral, since it does not hold real ownership of the land or construction.
From the developer’s perspective, the model converts real estate investment into a long-term contractual obligation, providing predictability to a financial flow more linked to investment return than to market rental value, and often enabling the anticipation of receivables through securitization.
This choice, however, requires careful consideration of its effects. Reduced autonomy over the asset and contractual rigidity impose limits that must be aligned with sector dynamics, especially in projects subject to technological, regulatory, or market changes. Short-term efficiency gains may, if poorly calibrated, result in long-term strategic constraints.
In practice, the most efficient structures tend not to be limited to pure models. Combinations of ownership, surface rights, and specific corporate vehicles, such as real estate special purpose entities (SPEs), have proven particularly effective in addressing governance, risk segregation, and financial optimization. These arrangements not only enable the project but also prepare it for future events such as fundraising, entry of new investors, partial divestments, or capital recycling.
This legal engineering is particularly useful when there is a multiplicity of investors, specific regulatory requirements, a need to isolate real estate liabilities, or the intention to create assets suitable for future monetization, partial divestment, or capital recycling. In such cases, the property ceases to be merely the physical support of the operation and becomes part of the project’s financial architecture itself.
Treating this decision with the same level of attention given to financing, engineering, and regulatory matters is therefore a sign of maturity in infrastructure project management and a competitive advantage for companies and investors who understand the strategic value of real estate assets beyond their physical function.
The real estate team at Marins Bertoldi Advogados remains up to date with the latest developments in real estate structuring for various types of projects and is available to provide legal assistance to your company.
