In a recent decision[1], the 3rd Panel of the Superior Court of Justice recognized the impossibility of seizing a property for condominium debts because it was sold in trust to Caixa Econômica Federal – CEF, i.e. the Court made an exception to Law 8.009/90, which authorizes the seizure of family property (residential property) for condominium debts.
In cases of fiduciary alienation, ownership of the property remains with the financial institution that provided the money for its purchase until the debtor settles the debt. In the meantime, the debtor only has direct possession of the property.
On this basis, the court held that the property belonged to the financial institution and not to the resident. Therefore, it could not be seized on account of a condominium debt.
The Rapporteur of the case in question, Justice Nancy Andrighi, also stated that: “By providing that the fiduciary debtor is liable for condominium expenses, the rule establishes that it is his assets that will be used for the satisfaction of said credit, not including, therefore, the property sold in trust, which is part of the assets of the fiduciary creditor”
The rapporteur’s vote also pointed out a legally possible way out of this impasse for condominiums: requesting the attachment of the real right to acquire the property and not the property itself. This measure is expressly authorized by article 835, item XII of the Code of Civil Procedure.
The right in rem to purchase is the expectation that ownership of an asset (the property) will be consolidated for one person (the buyer) once a condition has been met (payment of the mortgage). Thus, when the fiduciary debtor paid off the contract with the bank, ownership of the property could be transferred to the condominium, paying off the debt.
This decision represents an important ruling by the Superior Court of Justice because it consolidates protection for residential property against condominium debts and, at the same time, provides an alternative for condominiums to collect their debts.
Marcos Martins Advogados is attentive to the latest case law and discussions in all areas of the Judiciary, in order to provide adequate and effective advice to its clients.
[1] REsp nº 2.036.289 – RS (2022/0344164-7)
