Vanessa Salem Eid
Lawyer at Marcos Martins Advogados
In July of this year, the Federal Supreme Court (STF), in its ruling on ADPF 828, ordered the suspension of orders or measures to vacate areas that were inhabited before March 20, 2020, when the state of public calamity due to the COVID-19 pandemic was approved.
The suspension is neither broad nor generic, but the STF’s decision specifies that it must apply to “properties that serve as homes or that represent productive areas for the individual or family work of vulnerable populations”.
The same applies to injunctions granted for the eviction of vulnerable tenants who are living in residential properties. However, it should be noted that the concept of vulnerability must necessarily be analyzed individually, i.e. it varies according to the specific case.
The maximum period set for these suspensions is six months from the decision mentioned above and there are three situations in which they can be applied:
- for occupations prior to the pandemic (March 20, 2020, pursuant to Legislative Decree No. 6/2020;
- occupations after the pandemic and which are intended to provide housing for vulnerable populations, the Public Authority may prevent consolidation, provided that public shelters are made available or another form of adequate housing is ensured for the people who have been evicted;
- with regard to preliminary evictions, the suspension will also be for six months, so that summary preliminary evictions cannot be granted, without the hearing of the opposing party, in cases of residential leases in which the tenant is a vulnerable person.
The STF’s decision is aimed at protecting the rights to housing and health of people in vulnerable situations as a result of the pandemic and, as such, the São Paulo Court of Justice followed the same line, deciding to suspend some types of eviction actions, repossession or forced evictions and removals, by means of Joint Communiqué No. 1338/2021:
- Occupations prior to the pandemic, beginning on March 20, 2020, will be suspended for six months from the date of the decision;
- Occupations after the pandemic (after March 20, 2020) will not benefit from the suspension. It should be noted that the Government is responsible for allocating families in vulnerable situations to public shelters or similar, guaranteeing the right to housing, provided for in Article 6 of the Federal Constitution.
Similar acts have been adopted in several states. In Pernambuco, for example, Law 17.400/21 was sanctioned, suspending the enforcement of court orders for repossession, evictions or removals, whether or not determined by the judiciary, until the end of the pandemic.
The new law, known as “Zero Eviction”, will be in force until the end of the Public Health Emergency of National Concern (Espin) and also determines that no repossessions, evictions or removals can be carried out on people who have been in occupation since March 2020.
On October 22 this year, the 15th Chamber of Private Law of the TJ/SP suspended a forced repossession against a family[1]. The basis of the ruling was exactly the STF decision mentioned at the beginning of this article, which prevents evictions during the pandemic.
For the São Paulo Court of Justice, the ruling seeks to safeguard the “rights of families to remain where they are in the face of the pandemic situation affecting the entire world”.
The aggravated decision was handed down in the case of a possessory action before the 4th Civil Court of the Lapa Regional Court of the District of São Paulo, in which forced repossession was ordered without taking into account the occupation of the property prior to the State of Emergency being declared.
There are those who believe that the suspension would generate a vicious circle, as it would aggravate the situation of owners and landlords, directly impacting not only on the regularization of the property, but also on the source of income of those who hold individual property rights. On the other hand, Senators Paim and Jean Paul Prates were not only in favor of the measure, but also against the presidential veto, arguing that “it’s a humanitarian issue: not leaving people exposed to the virus on the street” and that “it’s an important precedent for other calamity situations that we will experience. And so it’s very important for these families
Despite being recent and raising questions about whether the collective protection of the right to housing is being privileged over the individual right to property, the matter is considered peaceful with regard to the suspension of evictions scheduled to take place during the pandemic for people who are occupying properties before March 20, 2020. Considering that the suspension period is about to end, we are keeping an eye on the next steps in the measure, so that we can come to a conclusion as to whether this protection is exceptional or a future trend for possible crises.
Furthermore, we conclude that the ideal is for the individual situation of each owner and possessor to be carefully analyzed so that the best decision can be made based on the collective crisis situation in which the country finds itself for both sides.
Vanessa Salem Eid is a lawyer working in Civil and Business Law at Marcos Martins Advogados.
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[1] “AGGREGATION OF INSTRUMENT filed against the decision that ordered the repossession of the property. The aggravating parties claim that the necessary demarcation of the perimeter to be repossessed has not been carried out. Possibility – decision handed down in ADPF828/DF by the Federal Supreme Court perfectly applicable to the case with a view to safeguarding the rights of families to remain where they are in the face of the pandemic situation affecting the entire world occupation carried out before the time frame established by the aforementioned decision requirements met for suspension of repossession issue surrounded perimeter to be demarcated must be known by the judge of first degree, at risk of suppression – decision reversed appeal upheld in the known part. Interlocutory Appeal No. 2216203-87.2021.8.26.0000, from the District of São Paulo.”
