Tatiane Bagagí Faria
Lawyer at Marcos Martins Advogados
The Federal Supreme Court, by a majority of votes, ruled that the attachment of a guarantor’s family assets in a lease agreement for commercial property is constitutional, dismissing the view that only in residential leases would it be possible to attach the guarantor’s only asset.
In the recent judgment, Justice Alexandre de Moraes prevailed, pointing out that Law 8009/90, which governs the unseizability of family assets, makes no distinction as to the nature of the rental agreement for the purposes of applying any exception to the seizure of the guarantor’s property, which is considered to be family assets.
The dispute brought before the STF originated in the São Paulo State Court of Justice, which upheld the seizure of the guarantor’s only property in order to pay the rent arising from a commercial lease. In an extraordinary appeal, the guarantor argued that the right to housing had been violated and that other means of securing the contract could be used.
In the judgment, the rapporteur stated that, by assuming the guarantee in a rental contract, whether residential or commercial, the guarantor acknowledges the possibility of being fully liable with his assets for any default by the tenant, including his only property used for living purposes.
With the STF’s decision, it is now constitutional to seize the guarantor’s only property, even if it is used for his home, even if the guarantee was given to secure a commercial lease.
Marcos Martins Advogados is attentive to new legislation and case law, in order to provide adequate and effective advice to its clients.
