Considering that the condominium debt has a propter rem nature – that is, it follows the asset that originated the debt – and bearing in mind that the very property generating the debt constitutes a guarantee of its payment, the owner (and promising seller) may appear on the passive side in the enforcement of judgment in a collection action, even if he was not a party to the original proceedings and even if the current occupants and promising buyers have made a payment agreement with the condominium association.
The understanding was established by a majority of votes by the Third Panel of the Superior Court of Justice (STJ), in upholding a ruling of the Court of Justice of Paraná (TJPR) which ordered the change of the passive side of the enforcement of condominium debts so that the cooperative owning the asset would answer alongside the borrower and occupant of the property.
In the course of the proceedings, the occupant of the property that generated the debts acquired the rights over it and entered into an agreement with the condominium association, taking responsibility for the payment. However, the occupant and borrower failed to comply with the agreement and, in view of the default, the condominium association requested the inclusion of the cooperative owning the property on the passive side of the enforcement.
The granting of the request in the first instance was confirmed by the TJPR, for which the responsibility for the payment of condominium debts falls upon whoever, in any way, holds title to the property.
Ambulatoriness
In the special appeal, the cooperative argued that, the agreement between the condominium association and the unit owner having been ratified, the debt came to have a personal character, without any relation to the property, which is why it should not form part of the procedural relationship in the enforcement of the judgment.
Justice Nancy Andrighi, the rapporteur, pointed out that, according to the records, the cooperative never ceased to be the owner of the property, since only after the full settlement of the contract would the promising seller transfer title to the promising buyer (borrower) – a fact that never came to pass.
On the other hand, the rapporteur highlighted that propter rem obligations – among which condominium debts are included – are endowed with “ambulatoriness,” that is, regardless of the will of those involved, the duty to satisfy them “follows the asset in all of its subjective changes.”
Extended liability
Nancy Andrighi emphasized that the responsibility for the payment of condominium expenses falls, in principle, upon the owner of the real estate unit, and may be extended to other parties who have a legal relationship with the asset and who exercise one of the aspects of ownership, such as promising buyers and lessees. The collection, therefore, may be directed at whoever can most readily fulfill the obligation.
The justice further clarified that the matter in the records is different from the controversy analyzed by the Second Section of the STJ in the judgment of the repetitive appeal REsp 1.345.331, in which the responsibility for the payment of the condominium debt was discussed, and not, specifically, the standing to constitute the passive side of the action.
Exception to the rule
In her vote, the rapporteur observed that, despite the provision of article 472 of the Code of Civil Procedure of 1973, to the effect that the effects of res judicata reach only the parties to the proceedings, the rule admits exceptions, so that these effects may also reach third parties who did not participate in the formation of the dispute.
“Starting from the premise that, in the final analysis, the very property generating the expenses constitutes a guarantee of the payment of the debt, given the propter rem nature of the obligation, the inclusion of the owner in the ongoing enforcement of the judgment must be admitted,” she concluded.
In upholding the contested ruling, Nancy Andrighi also highlighted the understanding of the TJPR according to which the existence of the agreement between the unit owner and the condominium association – which, in reality, was not even fully complied with – results only in an acknowledgment of the debt, but does not remove the propter rem character of the debt, with all of its legal consequences.
Source: STJ
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