In a recent decision (REsp n. 2.051.106/SP), the 3rd Panel of the STJ reaffirmed the position of the São Paulo State Court of Justice, which had dismissed an attachment for the enforcement of condominium debts on a property that had been usurped.
The case in question began with an enforcement action brought by a condominium to collect fees that the owner of a property failed to pay between 1997 and 2000. This debt led to the seizure of the property in 2019, however, in 2004, two people took possession of the unit by adverse possession, which was made official in 2021.
Thus, the current owners claimed that the debt relating to the seizure predated the possession by adverse possession and, as this institute is considered to be an original method of acquisition, i.e. there was no transfer of the property, nor was there a link between the current and previous owners, the seizure should be dismissed.
Therefore, the thesis was accepted in the first and second instance, and was endorsed by the Superior Court of Justice, with a vote by Reporting Justice Nancy Andrighi to the effect that: “The acquisition of property by adverse possession operates in an original manner, extinguishing all encumbrances that encumbered the property. There is, therefore, no alienation capable of justifying the incidence.”
The Reporting Justice was joined by Justices Ricardo Villas Bôas Cueva and Humberto Martins, with Justice Moura Ribeiro dissenting when he considered that usucaption is a derivative form of acquisition, which was joined by Justice Marco Aurélio Bellizze.
This decision consolidates legal certainty in similar cases in which a property owner can be sure that they are not obliged to assume a debt that is not theirs, since there is no link between the current owner of the property and the previous one.
We are attentive to the latest case law and discussions in all areas of the Judiciary in order to provide our clients with appropriate and effective advice.
