Cesar Peres Dulac Müller logo

CPDMA BLOG

Category:
Date: April 14, 2022
Posted by: CPDMA Team

The possibility of attachment of the guarantor's family property

Office with blank window and empty billboards illustrating the STF story about pledge of the guarantor's asset.

Recently the Federal Supreme Court (STF) judged an Extraordinary Appeal, submitted to the rite of general repercussion, where by a majority of votes it understood to allow commercial property lessors to pledge the guarantor's family property to guarantee the receipt of rents not paid by the lessee.

In his vote, the rapporteur, Minister Alexandre de Moraes, asserted that the possibility of attachment of the property does not violate the guarantor's right to housing, since, by signing the lease guarantee agreement, the guarantor waives the unseizability of his property. of family, giving the possibility of constriction of the property due to the debt of the lessee. He also stressed that in residential or commercial leases, the lessee and the guarantor are not in the same situation, since the entrepreneur, when entering into a commercial property lease agreement on behalf of the legal entity, can give his own “goods of family".

Although Law 8.009/1990 provides as a rule for the unseizability of the family asset, at no time does it impose the impossibility of transferring or recording a real lien, given that the owner retains the right to use, enjoy and dispose of his only property. 

The guarantor, therefore, since the execution of the contract (whether commercial or residential) is already aware that his private assets will be liable for the default of the lessee, including his family property, by express provision of the aforementioned article 3, VII, gives
Law 8009/1990.

Specialists believe that the prohibition of attachment of the family property of guarantors of commercial real estate can generate legal uncertainty, since the use of the guarantor is an alternative that provides gains in terms of promoting free enterprise by reducing costs for those who rent a immobile. As it becomes more difficult to obtain a guarantee, other types of guarantees tend to gain strength, such as capitalization bonds, advance payments, surety bonds, etc. 

Per: Daiana Martins Goulart Agostini - Credit Recovery

Return

Recent posts

The STJ decides that stock options (option to purchase shares or quotas) cannot be seized.

On November 5th, the 3rd Panel of the Superior Court of Justice ruled, through the judgment of REsp 1841466[1], under the rapporteurship of Minister Ricardo Villas Bôas Cueva, on the impossibility of seizing stock options. The case focused on the possibility of a third party exercising the right to purchase shares in […]

Read more

Governance in family businesses: essential structures and instruments

A governança corporativa em empresas familiares tem ganhado cada vez mais relevância no cenário empresarial brasileiro, no qual cerca de 90% das empresas possuem controle familiar. A ausência de um planejamento adequado para a sucessão do negócio e a dificuldade de manter a harmonia nas relações familiares, em muitos casos, culminam no fracasso da empresa […]

Read more
Resolution No. 586/2024 of the CNJ and the Future of Agreements in Labor Justice

On 09/30/2024, the National Council of Justice (CNJ) unanimously approved Resolution No. 586 through Normative Act 0005870-16.2024.2.00.0000, which regulates the agreement between employee and employer in the termination of the employment contract, through approval by the Labor Justice system, with full settlement of the contract. In other words, […]

Read more
The Legitimacy of Associations and Foundations to Request Judicial Reorganization and the New Stance of the STJ.

At the beginning of October, the 3rd Panel of the STJ, by majority vote, issued a decision in four special appeals (REsp 2.026.250, REsp 2.036.410, REsp 2.038.048, and REsp 2.155.284), ruling against the active legitimacy of nonprofit foundations to request Judicial Reorganization. This unprecedented decision appears, at first glance, […]

Read more
Government of RS Establishes Recovery Program II: Installment Plan for Companies Under Bankruptcy Protection

The Government of the State of Rio Grande do Sul has instituted the Recovery Program II through Decree No. 57,884 of October 22, 2024, with the objective of allowing the installment of tax and non-tax debts for entrepreneurs or business entities under bankruptcy protection, including taxpayers whose bankruptcy […]

Read more
Renegotiation of BRL 60 Billion in Debt for Companies Under Bankruptcy Protection Regularized by PGFN

With information from Valor Econômico newspaper. Original article link: http://glo.bo/3NOicuU Since 2020, the Office of the Attorney General of the National Treasury (PGFN) has been advancing negotiations to regularize debts of companies under bankruptcy protection, resulting in the renegotiation of approximately BRL 60 billion. The number of regularized companies has tripled, reaching 30% of cases, thanks to a more collaborative approach from the […]

Read more
crossmenuchevron-down
en_USEnglish
linkedin Facebook pinterest youtube lol twitter Instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter Instagram