The Federal Supreme Court (STF) has come to consider the property of a guarantor who secures a commercial lease agreement to be exempt from attachment. There are decisions in both panels, which diverge from the understanding reached in a general-repercussion ruling in 2010. According to the justices, the decision that deemed constitutional the provision allowing attachment would apply only to residential agreements. The article is by Adriana Aguiar, of Valor Econômico.
According to experts, this understanding makes it harder for surety guarantees to be accepted in the real estate market. It mainly affects small retailers and businesses that, owing to the rental amount and the financial conditions of the tenants, need a guarantor, states Adriano Sartori, vice-president of Asset Management and Leasing at Secovi-SP.
“Street retail, for example, which is already so harmed by the pandemic, may have difficulty arranging another form of guarantee,” he says.
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The report points out that there is no consolidated survey on the importance of the guarantor for the commercial sector. Only for the residential sector. “The Secovi-SP Leasing Survey shows, for example, that in 44.5% of the agreements signed in November there was a surety guarantee,” the reporter notes.
Check out another excerpt from the article:
The discussion began after the Plenary of the STF (RE 612 360) deemed the attachment of a guarantor’s family homestead legitimate, in general terms. The measure is provided for in article 3, item VII, of Law No. 8,009 of 1990, which deals with the family homestead. The matter is also settled at the Superior Court of Justice (STJ), through Precedent No. 549.
After the ruling, guarantors of commercial leases began to question the application of that understanding, arguing that the case dealt with involved a residential property, which led the justices to examine the matter again.
They came to hold that, in the case of a commercial property agreement, the guarantor’s right to housing should prevail, since the matter does not concern the tenant’s right to housing, the tenant leasing for business purposes. Read the full article on the newspaper’s website.
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