Even though the Civil Code requires the consent of the absolute majority of the co-owners to give possession of a property to third parties, any absence of such consent does not give rise to the nullity of the lease agreement, rendering it incapable of producing legal effects.
The defects that may lead to the annulment of the agreement are those provided for in Articles 166 and 167 of the Civil Code, and the legislation does not impose the obligation of the presence of all the owners in the lease instrument.
The understanding was established by the Third Panel of the Superior Court of Justice (STJ) in upholding a judgment of the Court of Justice of São Paulo (TJSP) that declared the termination of a lease agreement and ordered the eviction of the tenant – who entered into the agreement with only one of the owners of the property.
Co-owners are not part of the agreement
The plaintiff of the eviction action – who subsequently died and was succeeded by the heirs – filed the request in his own name and as legal representative of the other owners. However, two of the co-owners claimed that they were not part of the lease agreement nor authorized its conclusion.
At the first instance, the judge accepted the thesis of the co-owners and declared the nullity of the agreement, dismissing the action. However, the TJSP reversed the judgment on the understanding that the lack of agreement of the co-owners does not give rise to nullity.
Absence of defects
Rapporteur of the co-owners’ appeal, Justice Villas Bôas Cueva explained that, under the terms of Article 1,314 of the Civil Code, it is admitted that any of the co-owners may claim the thing from a third party and defend its possession. However, he pondered, in order for the destination of the asset to be changed, or to give possession to someone, the consensus of the co-owners is necessary.
On the other hand, in the case of the records, the Justice pointed out that the occurrence of none of the defects capable of giving rise to the nullity of the legal transaction, such as those described in the Civil Code, was demonstrated. “Moreover, it is uncontroversial in the records that the agreement was concluded between capable persons and there was the transmission of the possession of the property to the defendant”, he stated.
“Regarding the capacity of the plaintiff to enter into a lease agreement, it is opportune to observe that the law does not even require the condition of owner for its conclusion”, the Justice added.
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Unusual situation
For these reasons, Villas Bôas Cueva understood that the thesis of nullity of the agreement could not be accepted, so as to exonerate the tenant from any obligation, especially by virtue of the principle of the prohibition of unjust enrichment, provided for in Article 884 of the Civil Code.
In upholding the judgment of the TJSP, the rapporteur also considered it “unusual” that the thesis of nullity of the lease agreement was raised by the co-owners, since they, in theory, would have an interest in the receipt of the rents.
“As concluded by the court of origin, it proves irrelevant, in the present case, the demonstration of the consent of the co-owners for the plaintiff to enter into the lease agreement, the rents that are due and unpaid until the vacating of the property being owed”, the Justice concluded.
Source: STJ
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