In a decision given at the trial of the REsp 1,960,026/SP (2021/0293416-6), on October 11, the Fourth Panel of the Superior Court of Justice (STJ) partially reversed a decision by the Court of Justice of the State of São Paulo (TJSP), in a case that involved the possibility of attachment of a property under construction. TJSP had considered that the property under construction could not be characterized as a family asset, because the debtor does not reside in the place with his family members. This understanding brings to the discussion the controversy about the scope of Law 8,009/90 protection.

The court of origin concluded for the attachment of the property, on the grounds that the legal protection established in Law 8.009/90 can only be granted if it is proven that the debtor has only one property and that this property effectively serves as a residence to the family entity or is used as a source of resources intended for the subsistence of the family (indirect family property, Summary 486/STJ).

Law 8.009/90 establishes that the residential property owned by the couple or family entity is immovable and will not be responsible for any type of debt undertaken by the family entity (spouses, parents or children) that are its owners and reside there.[1]

In his vote, the reporting judge, Minister Marco Buzzi, argued that the purpose of the law is not to protect the debtor against his debts, but to protect the family entity and support fundamental rights, such as dignity of the human person and housing, which is why the protective rules of these rights should have their exceptions interpreted restrictively.

Thus, the interpretation most aligned with the purpose of Law 8.009/90 is that the fact that the debtor does not reside in the only property of his property, is not enough to prevent this property from being considered a family asset.

The decision of the Fourth Panel of the STJ is also based on the REsp 1,417,629/SP, judged on December 10, 2013 by the Third Panel of the STJ and reported by Minister Nancy Andrighi. The judge mentions that "... although the land is bare, it is possible to consider it untouchable if it is proven that the family has the concrete intention of settling on it – for example, if there is a construction project, purchase of materials and the beginning of the work (...)". That is, although there are not yet living conditions, the property is being built for this purpose.

In the present case, the debt incurred by the debtors did not result from an obligation relating to the construction of the housing unit itself, which could frame the attachment in the exceptions provided for by law.

In addition, debtors, because they are senior citizens, rely on the protection of the Senior Citizens’ Statute against possible helplessness of the family entity, a situation that could happen if the attachment was maintained.

As the TJSP had not conducted the analysis of the other requirements for the property to be considered a family asset (for example, the confirmation of the absence of other properties owned by the debtors), it was determined the return of the records to the court of origin for a retrial.

With the arguments brought by the minister rapporteur, the STJ reinforces the need to interpret protective laws of fundamental rights – as with the family asset – according to the specific case. The applicable restrictions must be respected, but without failing to meet the protection objective set by the standard.

 

[1] Unless the execution process is moved:

  • by the holder of the credit arising from the financing for the construction or acquisition of the property, to the limit of the credits and accruals constituted according to the respective contract;
  • by the creditor of the alimony, protected the rights, on the property, of its co-owner who, with the debtor, integrates a stable or conjugal union, in the condition that both will be responsible for the debt;
  • for collection of taxes, property or land, fees and contributions due according to the family property;
  • for foreclosure on the property offered as a real guarantee by the couple or the family entity;
  • for having been acquired with proceeds of crime or for the execution of a criminal sentence condemning the reimbursement, indemnification or loss of property; and
  • obligation arising from the bail granted in the lease.