A resident who is in arrears on condominium dues – a defaulting unit owner – cannot be barred from using the building’s common areas, such as the swimming pool, playroom, party hall, or elevators.
This understanding was adopted by the courts (STJ) when granting the appeal of an apartment owner who was barred from using the condominium’s common areas because of non-payment of condominium fees.
Unanimously, the panel held invalid the internal-rules provision that barred the use of the common areas on account of default on the dues.
In the case discussed in the appeal, the accumulated debt was R$ 290 thousand in 2012, when the unit owner filed suit to be able to use the common areas after having been prohibited by the condominium.
She argued that the default resulted from a tragic situation, since she became unable to cover the expenses after her husband was the victim of robbery followed by death (latrocínio). In addition, she stated that there are already two collection actions underway, in which properties worth more than the debt were attached.
The request was dismissed at first instance – a decision upheld by the Court of Justice of São Paulo (TJSP), which held that the use of non-essential services without consideration would be an incentive to default.
In 2016, the Third Panel of the STJ, in deciding a similar case, ruled in the same vein, declaring the impossibility of internal-rules provisions restricting access to common areas in the event of non-payment of condominium fees.
The rapporteur of the special appeal examined by the Fourth Panel, Justice Luis Felipe Salomão, highlighted the unprecedented nature of the question in the panel, recalling that legal doctrine holds divergent positions as to the possibility of restricting the use of common areas in the event of default.
Salomão said that the Civil Code established as a characteristic the blending of individual property with co-ownership over the common parts, forming an organic and indissoluble unit.
The justice highlighted the rule in item II of article 1,335 of the Civil Code – clear, in his view, in guaranteeing the use of the common areas as a right of the unit owner. “In addition to the right to use and enjoy their autonomous unit, the unit owners have the right to use and enjoy the common parts, provided that they do not hinder or exclude the use by the others,” the rapporteur stated.
According to the justice, the condominium cannot impose sanctions that are not provided for by law in order to coerce the debtor into paying the debt. He said that “there is no doubt that the appellants’ default has been causing losses to the condominium,” but that the Civil Code itself established “specific and strict” legal means for collecting debts, “without any form of constraint on the dignity of the unit owner and other residents.”
No legal basis
The rapporteur agreed with one of the appellant’s arguments, namely that paragraph 1 of article 1,336 of the 2002 Civil Code is clear as to the penalties to which the defaulting unit owner is subject, and among them is not the prohibition on using the common areas.
Salomão said that the Civil Code, in providing for the rights of unit owners, whenever it sought to restrict or condition any of those rights on account of non-payment, did so expressly.
“And as is well known, as a matter of legal hermeneutics: norms that restrict rights must be interpreted restrictively, not admitting an expansive exegesis.”
The justice emphasized that the failure to pay condominium fees has been discouraged by the possibility of losing the property, as it is an express exception to the non-attachability of the family home.
Source: STJ
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