The right of first refusal provided for in article 504 of the Civil Code does not apply to the sale of a fraction of a property between co-owners. That is, when there is no entry of third parties into a jointly owned property.
The Third Panel of the Superior Court of Justice (STJ) granted the appeal of a co-owner to affirm the legality of the transaction carried out with another co-owner without the offer of the right of first refusal to the holder of the larger fraction of the property.
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For the reporting justice of the special appeal, Minister Paulo de Tarso Sanseverino, the hypothesis provided for in article 504 of the Civil Code governs the hypotheses of sale to strangers. Which did not occur in the case judged.
“Without the core hypothesis being realized, there can be no question of application of the sole paragraph, that is, of competition among the other owners,” he justified.
The reporting justice highlighted that legal provisions must be interpreted in a systematic-teleological manner. The hypothesis provided for in article 504, according to the reporting justice, was conceived to reduce the state of undivided ownership of the asset, since the owner of the larger fraction has the possibility of preventing the entry of other persons into the joint ownership.
However, when there is no third party involved and there is no dissolution of the joint ownership, the right of first refusal does not exist.
“There is no potestative right of first refusal in the event that one of the co-owners alienates his ideal fraction to another co-owner, since no person foreign to the co-ownership group has been brought into the co-ownership, which is the reason for which the preemption or right of first refusal was established,” said the minister.
Right of first refusal not applied
Sanseverino recalled that the appealed ruling based its decision to invalidate the sale of the fraction of the property on article 1,322 of the Civil Code. In the view of the reporting justice, followed unanimously by the panel, such article is inapplicable to the case, since there was no extinction of the joint ownership.
“The conclusion that must prevail, therefore, is: where there is no extinction of the joint ownership, the co-owner is allowed to choose to which other co-owner to sell his ideal fraction, without this giving rise to the exercise of the potestative right of first refusal,” he affirmed.
Thus, for the Third Panel, articles 504 and 1,322 of the Civil Code do not have the effect of annulling the sale of the fraction of the property from one co-owner to another.
Source: STJ
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