Jorge Luiz Dantas
Lawyer at Marcos Martins Advogados.
The protection of property used for family housing received legal support in 1990, obviously due to the promulgation of the 1988 Constitution, which established principles clearly aimed at the development of society and the citizens who live in it.
The constitutional guideline was spelled out in its first article, which sets out its foundations, including citizenship and the dignity of the human person. Article 3, which sets out the objectives of the Constitutional Charter, expresses the desire of the original constituent power to eradicate poverty, reduce social inequalities and create a free and just society. This, then, is the constitutional framework that informs the entire Brazilian legal system, including Law 8.009/90.
As could not be otherwise, over the last 24 years Brazilian society has undergone significant changes, which, fortunately, have been perceived by our Supreme Courts, which have been able to give a new interpretation to the rules contained in this law. It should also be remembered that Constitutional Amendment 26/00 expressly included housing among the social rights set out in Article 6 of the Federal Constitution.
In short, the paradigm of the law, over the years, has established the protection of the family entity in the broadest possible sense. In this way, the claim to family property extends to stable unions, same-sex unions, single-parent families, single people, separated people, widows (Precedent 364-STJ) etc.
Similarly, the volatility of marital relationships has led to developments that have made Article 5 of Law 8.009/90 practically a dead letter, since, as the STJ has already decided, there is the possibility of more than one family asset when the family has been split up for various reasons. Thus, the family unit consisting, for example, of the mother and children is protected, even if the father, with the divorce, also has his property protected. A family entity has split into two and both are entitled to the unseizability of the property in which they reside. This section, however, does not extend to the mere de facto separation of one of the family members, as in the case of one of the children living in another family property, as this would mean extending the scope of the law too far, encouraging fraud[1]. Also, rented property whose income is intended for the family’s subsistence or to pay for another home, under the terms of Precedent 486 of the STJ, cannot be seized.
There is, however, a very thorny issue when it comes to the unseizability of property mortgaged in favor of a third party that benefits only one member of the family. In this case, the unseizability of the property prevails. There is a recent STJ judgment[2] that ruled out the unseizability because the couple were partners in the business company that received the real guarantee, from which the benefit to both was presumed.
On the other hand, the person who personally guarantees a rental relationship by providing a guarantee loses the protection of the unseizability of the family property. Note that in this case there is no question of the family entity benefiting. The free disposal of the property by the guarantor, in itself, rules out the application of Law 8.009/90 to their benefit.
Shouldn’t this also be the case with mortgages, especially since mortgages also require a spousal guarantee?
It should be noted that the discussion is extremely rich and encompasses various legal institutes which, as has been shown, have altered the interpretation of Law 8.009/90. It also involves, according to former STF Justice Cesar Peluso[3], the very concept of the right to housing, which does not necessarily mean the right to property.
It can be concluded, therefore, that the casuistry encourages issues relating to the unseizability of family property to be brought before the Higher Courts since society, multifaceted as it is, will often bring unique configurations, the understanding of which will require other interpretations by legal operators.
[1] AgRg in AREsp 301.580. Reporting Justice Sidnei Beneti, judged on May 28, 2013.
[2] REsp 1.413.717 – PR (2013/0204788-5). Judge Nancy Andrighi, judge on November 21, 2013.
[3] RE 407.688 – Rapporteur Minister Cezar Peluso, published in the DJ of 06.10.2006. This ruling guided the recognition of general repercussion in RE 612.360 RG / SP – SÃO PAULO – Relatora Ministra Ellen Gracie, julgado em 13.08.2010.
