In a recent ruling on an appeal against a decision that denied attachment of real property classified as family property (interlocutory appeal 2075933-13.2021.8.26.0000), the 16th Chamber of Private Law (CDP) of the São Paulo Court of Appeals (TJSP) decided, by majority vote, in favor of the exceptional possibility of setting aside the unattachability of family property (with a declared value of R$ 24 million), even if intended for housing of the debtor.

Applying the principles of proportionality and reasonableness, the judges ruled that the setting aside of the unattachability provided for in Law 8,009/90 is possible, provided that the objective of the law and the minimum equity for the debtor to maintain a decent life (in this case, set at 10% of the value of the original property) are maintained, for him to purchase another property for his residence.

The concept of family property aims at legal protection and preservation of a single property intended for the residence of the family entity that allows the concomitant exercise of the fundamental rights to housing, human dignity, and the existential minimum. In the event the family entity owns more than one property intended for its residence, the law determines that the protection indicated is restricted to the property of lesser value or to the one in whose enrollment the concept was registered, but without establishing a maximum value for the family property concept.

The protection of the right to housing provided for in the law constitutes a social right included in article 6 of the Federal Constitution and, further, is classified as protection of a fundamental right, and is not absolute, but may be weighed against other constitutional rights and principles. By loosening the legal rule, the understanding evidenced in the decision rekindled the discussion on the maintenance of the unattachability of one's own residential property or that of a family entity, regardless of its value.

According to the decision, a literal interpretation of Law 8,009/90 could lead to the understanding of maintaining the unattachability of the family property, regardless of value. However, according to most judges, the law should have an interpretation in line with the provisions of article 5 of the Law of Introduction to the Norms of Brazilian Law and article 8 of the Code of Civil Procedure, taking into account the social purposes for which the law is intended and the requirements of the common good, observing the principles of proportionality, reasonableness, legality, and efficiency.

The decision of the 16th CDP of the TJSP sought to give effectiveness to the aforementioned provisions, giving the magistrate the possibility of going beyond the application of the letter of the law and seeking the ultimate meaning of the legislation. To justify the decision, the judge responsible for the majority opinion posed rhetorical questions regarding the protection of the family property concept to extend to property whose fraction of value exceeds the total assets of most Brazilians, having understood that there is no need for property worth R$ 24 million to preserve the dignity and existential minimum of the debtor.

The understanding that prevailed, therefore, was that the protection of family property, when of a high value, should be mitigated to ensure the effectiveness of the creditor's right to receive the amount due. The debtor's right to housing and dignity must be safeguarded, however, by segregating a percentage of the proceeds from the future auction in order for him to purchase a new property, which cannot be attached pursuant to Law 8,009/90.

The interpretation favorable to the creditor still represents an isolated understanding, but in the long run may be part of a change in the case law of Brazilian courts, establishing a maximum limit on the value of the property to be protected by the family property concept. For greater legal certainty, however, the ideal situation is to settle the discussions involving family property by means of more precise regulations in law, whether to impose new limits, or to ensure that the protection of the concept does not encounter barriers beyond those provided for in the legal text.