Aline Cavalcante de Souza Sanches
Advogada do Escritório Marcos Martins Advogados
On May 18, 2021, the 4th Panel of the Superior Court of Justice, under the Reporting Justice Marco Aurélio Bellizze, ruled on Special Appeal No. 1475477 / MG (2014/0129218-5), to define whether Law No. 8.245/1991 would apply to a commercial sublease agreement that has clauses adjacent to the rental of the property.
Law No. 8.245/1991 regulates the commercial and residential leasing of urban properties, as well as the relevant procedures Deciding whether this legislation applies in the case under analysis involves determining whether or not it would be appropriate to evict the subtenant.
In the case under review, a commercial sublease agreement was signed, which established various obligations of a commercial nature, not related to rent, such as the use of the landlord’s brand on the property
As a result of the subtenant’s failure to pay the rent due, an eviction action was filed, with the aim of vacating the property and being ordered to pay the unpaid amounts
The Court of Justice of the State of Minas Gerais dismissed the action, recognizing a lack of interest, on the grounds that an eviction action would be inappropriate to terminate the sublease agreement signed between the parties, since the instrument was not restricted to regulating a rental relationship, but also other commercial issues.
With this understanding, it ruled that eviction proceedings in sublease agreements would only be appropriate if the agreement was restricted to regulating the rent of the property, and could not define other business matters, otherwise the application of Law No. 8.245/1991 would be ruled out.
The landlord filed a Special Appeal, seeking an analysis of the matter by the Superior Court of Justice, with the aim of establishing whether the existence of parallel commercial clauses would rule out the possibility of eviction under the sublease agreement.
It argued that the existence of ancillary agreements, defining supplementary legal business, does not denaturalize the sublease agreement, and that Law No. 8.245/1991 should be used.
In brief lines, in order to resolve the controversy, the Superior Court defined the distinction between mixed and related contracts.
It explained that “mixed contracts can be defined as those resulting from the combination of specific elements from different contracts, leading to the creation of a singular contract”, while “related or connected contracts involve the juxtaposition of different types of contracts, in such a way that each one retains its autonomy”.
In mixed or hybrid agreements, there is a fusion of clauses from different modalities, with the parties inserting into a given legal transaction some elements specific to other instruments, mixing them up and creating a third type This is the case with leasing, which originates from the combination of the typical purchase and sale agreement and the lease agreement.
In this category, because typical elements of two or more named contracts are combined, they lose their individual nature.
However, the Superior Court of Justice held that this was not the case in the case at hand, seeing it as a linked contract, since all the other agreements, of an obligatory nature, would be subordinate to the sublease.
This is because the parallel issues, in isolation, would be uninteresting, as there is a connection between them and the sublease.
The accessory clauses were fixed in a manner dependent on the lease, and the use of the trademark regulated in the sublease instrument only existed for the specific purposes of application to that property, and with the extinction of the main rental relationship, the underlying issue also ceases to exist.
As such, the Reporting Justice concluded that “the sublease agreement does not lose its autonomy and does not become unnatural even in the event that the agreement signed by the parties includes other types of contract with the sole aim of realizing and enabling its economic purpose.
Therefore, the fact that the contract regulates, in addition to the sublease, other ancillary obligations, related to the commercial relationship established in the property, does not remove the application of the Lease Law, No. 8.245/1991, but only prioritizes the functional execution of the pact, and the eviction action is fully appropriate, given the default of the rents.
Marcos Martins Advogados is available to provide legal solutions to issues involving real estate law and the rental law, by applying the most modern understandings of the Superior Courts.
