Priscilla Folgosi
Lawyer at Marcos Martins Advogados
The First Panel of the Federal Supreme Court, by a majority of votes, in Extraordinary Appeal No. 605.709, involving the auctioning off of a property in 2002, held that the judicial precedents that allow the attachment of the guarantor’s family assets in residential leases do not extend to cases involving commercial leases.
The trial began in October 2014, when Justice Dias Toffoli ruled that the family assets could be seized in both commercial and residential leases. On that occasion, the analysis of the appeal was suspended by a request from Justice Luís Roberto Barroso.
The issue was discussed again in June 2018, when Barroso presented a vote accompanying the rapporteur, recognizing that the STF already has a settled position recognizing the possibility of seizing family assets in residential rental contracts, stating that the guarantor who voluntarily offers the asset as a guarantee may have it seized for the payment of debts arising from the rental contract.
Justice Rosa Weber opened the dissenting opinion against the attachment of family assets in commercial leases, voting for the appeal to be upheld on the grounds that there is an incompatibility between the possibility of attachment of the guarantor’s family assets in commercial leases and the fundamental right to housing and the principle of equality set out in article 5, caput, of the Magna Carta.
Then, Justices Marcos Aurélio and Luiz Fux followed Justice Rosa Weber’s vote and, by majority vote, the appeal was upheld, ruling out the attachment of the guarantor’s family assets in commercial leases.
This judgment brings to light a possible change in the legal provision regarding the seizure of family assets in lease agreements, as authorized by article 3, item VII, of Law 8.009/90 (the Tenancy Act), thus minimizing the effects of the constriction of the guarantor’s assets in commercial lease agreements, and also making it more difficult to satisfy the debt in such leases.
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Consultor Jurídico. By majority, STF rules out seizure of guarantor’s family assets in commercial leases. July 18, 2018. Available at: Conjur. Accessed on: February 28, 2019.
STF. Extraordinary Appeal: 605.709/SP. Rapporteur Dias Toffoli. Date of judgment: June 12, 2018. Available at: STF. Accessed on: February 28, 2019.
