Aline Cavalcante de Souza Sanches
Lawyer at Marcos Martins Advogados
Article 1 of Law No. 8,009/90 established the unenforceability of family property, thus prioritizing the fundamental constitutional right to housing for family members, which is indispensable for guaranteeing the bare minimum for a dignified life.
In a nutshell, the family home can be conceptualized as the family’s own residential property, the purpose of which is to serve as the family home, which is protected by impenetrability and cannot, as a rule, be used to pay off debts, as it is an essential asset for the subsistence of its residents.
However, article 3 of the aforementioned legislation establishes several exceptions to the general rule of the unseizability of family property, defining hypotheses in which the family home can be subject to asset constriction for debts owed by its owners.
One of the exceptions to the rule of unseizability of family property, set out in item V of article 3, is when the property has been offered as a mortgage guarantee by the couple or family entity, which makes it liable to be seized in order to pay off the debt guaranteed by the mortgage.
However, the Superior Court of Justice, giving a new understanding to this provision of the law, has established its case law to the effect that the family property remains unseizable, even when offered as a mortgage guarantee for a debt, if this act was carried out by one of the partners to secure the debts of the debtor legal entity[1].
The Supreme Court has ruled out the exception in Article 3(V) of Law No. 8,009/90, maintaining the unenforceability of the mortgage when it is verified that the economic benefit of the debt contracted by a legal entity, guaranteed by a mortgage on the property of one of its partners, was not in favor of the family members who live in the mortgaged property.
Thus, if the family home is the object of a mortgage guarantee that was used to secure a legal entity’s debt, the creditor will have the burden of proving that the economic benefit went to the family entity, in order to remove the impeniability.
However, the family property may be seizable when the sole shareholders of the debtor company are the owners of the mortgaged property, and favoritism is presumed, with the owners having the burden of proving that the family did not benefit from the amounts earned[2] and which constitute the debt guaranteed by the mortgage.
In other words, if the family entity proves that the economic gain from the debt secured by a mortgage on its property was not for its members, but for a legal entity, the tendency is for the courts to recognize the unenforceability of the mortgage, ruling out the exception in article 3, item V of Law 8,009/90.
Applying this understanding, on September 8, 2020, the 22nd Chamber of Private Law of the São Paulo Court of Justice upheld a debtor’s appeal to declare that the family’s property, given as a mortgage guarantee for a debt contracted by a business entity, was unenforceable.
The interpretation given by Reporting Judge Roberto Mac Cracken, in the judgment of the Civil Appeal, filed under No. 1002121-11.2019.8.26.0004, was that the exception in article 3, item V, of Law 8.009/90, is only applicable when the guarantee is provided or reverts to the benefit of the family nucleus, which cannot be assumed when the mortgage is granted in favor of a legal entity, even if it is linked to the individual provider.
The judgment stated that “the unenforceability of family property is the protection given by the legal system to the fundamental right to housing, as a dimension of human dignity itself”.
Thus, “as a logical consequence, it is necessary to recognize the mitigation of the principle of the autonomy of the will, to the point that the waiver of the impeniability of the family property given as a guarantee of debt cannot prevail, insofar as
not only to the debtor, but also to his family”.
Marcos Martins Advogados is aware of this issue and is ready to help you protect your family property by applying the most up-to-date case law and civil law institutes.
Have any questions? Talk to our lawyers and receive guidance.
[1] STJ, Embargo of Divergence in Appeal in REsp 848.498 – PR – 2016/0003969-4 – Rapporteur: Minister Luis Felipe Salomão; judgment on 25/4/18
[2] STJ, AgInt no REsp 1.675.363 – MS – 2017/0127734-7 – Reporting Justice Moura Ribeiro; judgment on 8/28/18
