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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

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