The Superior Court of Justice (STJ) recently set the thesis related to Theme 1,095 to assess whether, in case of default of contract for the purchase and sale of real estate property with guarantee of fiduciary disposal, it would be correct to apply specific law, the Law 9,514/97 – which provides for the Real Estate Financial System and instituted the fiduciary alienation of real estate property (Fiduciary Alienation Law) – or law of a general nature, the Law 8,078/90 – establishing the Consumer Protection Code (CDC).

The Second Section of STJ unanimity decided, on 26 October 2022, that "in the purchase and sale agreement of real estate property with guarantee of fiduciary alienation, duly registered, the resolution of the agreement, in the event of default of the debtor duly constituted in arrears, must observe the form provided in Law 9.514/97, the specific legislation, dismissing from the application of the Consumer Protection Code".

By affecting the Special Appeals 1,891,498 and 1.894.504 for the rite of repetitive appeals, STJ suspended the processing, throughout the national territory, of proceedings on identical legal issues, both in the first and second instances and the claims before STJ.

In one of these cases, the debtor claimed that there was illicit enrichment of the creditor, since, after being recovered by the creditor, the real estate property was disposed of at full value after only one year. On the other hand, the creditor reinforced the existence and the need to apply a specific rule regulating the contractual relationship in fiduciary alienation.

In practice, the STJ sought to resolve the controversy regarding the application of the Fiduciary Alienation Law or the CDC in purchase and sale agreements of real estate property in which the fiduciary alienation is constituted as a guarantee, duly registered in the competent real estate registry office, even due to a mistaken equivalence between separate legal businesses.

In purchase and sale agreements with guarantee of fiduciary alienation duly registered in the real estate registry office, until there is full compliance with the obligation contracted by the debtor, the resoluble property of the real estate property – the one that is not full and is tied to the resolution of a condition – is transferred to the creditor as a guarantee of the obligation assumed by the debtor.

In this way, the Fiduciary Alienation Law establishes that, once the debt is due without payment in full or in part of the agreed value, the property of the real estate property is consolidated on behalf of the fiduciary creditor, who shall promote the public auction of the real estate property within 30 days, with the aim of repaying the debt (pursuant to Articles 26 and 27 of the Fiduciary Disposal Law).

In case of default, the creditor seeks the satisfaction of the amounts spent for the financing of real estate property, guaranteed through the constitution of fiduciary alienation. Therefore, it should not be mentioned that the refund of amounts already paid by the buyer (the debtor), but rather satisfaction of the credit provided by the creditor, since it is a debt collection arising from the granting of credit.

In order to avoid illicit enrichment, the Fiduciary Alienation Law determines that, after the public auction, the debtor will be handed the excess amount obtained, if any, provided that the amounts related to the amount of the debt, expenses, insurance premiums, legal charges – including taxes – and condominium contributions are satisfied. In fact, the structure of the Fiduciary Alienation Law seeks to incite economic balance at the time of the foreclosure of the secured guarantee.

On the other hand, if the CDC’s impact on the purchase and sale agreements guaranteed by fiduciary alienation clause were considered, it would be mandatory to recognize the need to refund the amounts paid up to the time of default of the debtor (in accordance with Article 53 of the CDC), with the application of a fine (limited, including, by the STJ itself). This could be a shock to the legal certainty of real estate market operations and, in particular, the debtor's dismissal of a number of consequences of default.

The matter dealt with in Theme 1,095 was restricted to the form of refund of the parcels, and not to the legality of the foreclosure of the of the secured guarantee itself.

According to the recent understanding of STJ, because it is a specific rule and subsequent to the CDC, the application of the Fiduciary Alienation Law must prevail. The only requirement is that all legal requirements be present, which are: (i) the fiduciary alienation must be duly registered in the enrollment of the real estate property in the competent real estate registry office; and (ii) the debtor must be properly constituted in arrears.

In his decision, The Minister reporting judge Marco Buzzi alluded to the principle of specificity of legal norms, which determines the prevalence of the special rule over the general rule. As there is specific legislation regulating fiduciary guarantee, the CDC, as a more extensive legislation, could not be used to object it.

According to the Brazilian Association of Real Estate Developers, more than 90% of real estate financing was guaranteed by fiduciary alienation in 2020. This is the main form of guarantee used in Brazil since at least 2001.

This milestone is due to the fact that, in fiduciary alienation, there is security for the creditor as to the restitution of the amount borrowed, in addition to the ease of execution of the debt by extrajudicial and swift procedure.

Another risk mitigator is that the guarantee used for the payment of the amounts agreed between the parties is the real estate property, itself from which it intends to obtain full ownership, which would result, at least in theory, greater commitment and incentive of the debtor to fulfill the obligations assumed within the time limit.

In this context, and from the perspective of the STJ, the judgment of Theme 1,095 was relevant to the extent that it represents the guarantee of economic stability and legal security for the purchase and sale agreements entered into, especially with regard to the application of a specific rule of the Brazilian legal system.

After the due publication of the judgment, Theme 1,095 will have the erga omnes, i.e. it will apply to all suspended cases, as well as to those that have been supervened on an identical issue by the ordinary courts.