Just as in marriage, the surviving partner of a stable union, holder of the real right of habitation, is not permitted to enter into a loan-for-use (comodato) or lease agreement for the property with a third party.
With this understanding, the Third Panel of the Superior Court of Justice (STJ) denied the appeal of a person who, alleging a lack of means to maintain a luxury property located in an upscale area, had entered into a loan-for-use agreement with a third party after the death of her partner.
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Real right of habitation
According to the reporting justice of the appeal, Justice Nancy Andrighi, there is no singularity in the stable union that would justify any differentiated treatment in relation to marriage, specifically as regards the conditions for exercising the real right of habitation.
The justice emphasized that the rule of Article 7 of Law 9.278/96 must be interpreted in conjunction with Article 746 of the Civil Code of 1916, in force at the time, in the sense of the impossibility of renting out or lending the property that is the object of the real right of habitation.
“An interpretation to a different effect would establish a paradoxical situation in which, having as its basis the same legal institute – the real right of habitation – which has the same purpose – protection of housing and of human dignity –, the surviving spouse would be prohibited from renting out or lending the property, but the surviving partner would be allowed to engage in the same conduct, there being, it must be reiterated, no theoretical justification for making a distinction of this nature,” the justice stated.
Financial difficulties
In the appeal, the appellant alleged that she had been the victim of unlawful dispossession (esbulho possessório) committed by the daughter of her deceased partner – and recognized in a judgment that had become final and unappealable. She stated that, upon recovering possession of the property, she found it damaged, and lacked the financial means for the necessary repairs or for routine maintenance.
For this reason, she chose to sign a loan-for-use agreement with a person who had purportedly committed to renovating and preserving the property.
The justice explained that the dispossession does not justify relaxing the legal rule that prohibits the loan-for-use of the property over which the real right of habitation falls. According to her, there is no causal link between the unlawful dispossession and the subsequent execution of the loan-for-use agreement.
Nancy Andrighi recalled that the appellant could have adopted other courses of conduct in an attempt to overcome the difficulties she encountered in preserving the property after the dispossession, including seeking compensation to restore the prior situation.
Source: STJ
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