Cesar Peres Dulac Müller logo


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


Recent posts

Misuse of a trademark by a former partner can be recognized not only as unfair competition, but also as bad faith.

On February 14, the newspaper "Valor Econômico" published an article in which it was pointed out that the São Paulo Court of Justice had recognized unfair competition in the improper use of a trademark by a former partner. The article, however, does not give the number of the case in which it would be possible to analyze more details of the decision, but it does inform that the individuals had signed a [...]

Read more
The first sanctions applied by the National Agency for the Protection of Personal Data (ANPD) were a wake-up call for companies: the LGPD is a serious law and must be complied with.

The General Personal Data Protection Law - Law No. 13,709/18 (LGPD) was published in 2018 and came into force in 2020. This deadline was given to public and private legal entities (processing agents) that collect, store or process the personal data of individuals, in Brazil or abroad, in order to [...]

Read more
Business position on the recent STF decision that ruled that it is constitutional for trade unions to charge assistance contributions

Recently, the Federal Supreme Court (STF) unanimously ruled that unions can collect an assistance contribution, including from non-member employees, in ARE 1.18.459 (Topic 935 of the General Repercussion), as long as the worker is guaranteed the right to object, establishing the following thesis: "it is constitutional to establish, by agreement or [...]

Read more
The new chapter in the legal dispute involving the term "HELLES", registered as a 'trademark'.

Recalling the case... It all started at the beginning of 2019, when the brewery Fassbier gave extrajudicial notice to a series of breweries in Rio Grande do Sul for the alleged misuse of the term HELLES, claiming to have exclusive use of the expression, given that the word was registered as a trademark. Not satisfied with [...]

Read more
Suspension of labor executions against companies in the same economic group

In a recent decision, the STF suspended the processing of labor executions that discuss the inclusion, in the execution phase, of a company that is part of an economic group that did not participate in the knowledge process. In labor proceedings, when the execution phase is reached and the main debtor does not have enough assets to pay the debt, many [...]

Read more
STJ decides that the legal personality of a civil association can be disregarded, but limits liability to the directors

The 3rd Panel of the Superior Court of Justice (STJ) [1] dismissed a special appeal filed by the directors of a civil association, which had its legal personality disregarded in a case involving the improper use of a trademark. The Court, in a judgment drafted by Justice Marco Aurélio Belizze, held that the disregard of [...]

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