The dissolution of the co-ownership – that is, the sale of the house or apartment – may be sought even when one of the former partners lives in the property with their children. See this case.
The Superior Court of Justice (STJ) reversed a ruling of the Court of Justice of Paraná (TJPR) to allow the plaintiff to sell the joint property that he owned with his former partner, acquired through fiduciary alienation.
After the separation, she became responsible for paying the financing installments and continued to reside in the property with the two children they had together.
The plaintiff filed the action to sell the property and to receive from his former partner rent for the exclusive use of the asset.
The lower court ordered the sale, the proceeds of which were to be divided equally between the two, and ordered the woman to pay rent corresponding to the fraction of the property belonging to her former partner.
However, the TJPR, in the name of the constitutional right to housing, ruled out the possibility of selling the rights relating to the property.
Separation entails a loss of standard of living
The rapporteur of the case stated that the TJPR concluded in favor of the prevalence of the social interests arising from family law, notably the constitutional right to housing, over the right to dissolution of the co-ownership. But in his assessment the ruling deserves to be reversed on this point.
According to the justice, the state court held that the former partner would suffer losses with the sale, since she holds only 50% of the rights to the property and would not be able to buy another of the same standard solely with the proceeds of the sale.
“It is a notorious fact that, in separation or divorce proceedings, there is a natural loss of standard of living for all members of the family, with efforts being made only to establish palliatives to offset these losses”, he said.
The right to dispose of the asset is inherent to ownership
The justice recalled the understanding of the STJ according to which it is a potestative right of the co-owner to promote the dissolution of the co-ownership of an indivisible real property, by means of judicial sale.
In addition to this, he emphasized that the Civil Code, in its Article 1,320, establishes that it is lawful for the co-owner, at any time, to demand the division of the common asset.
The rapporteur also verified in the case records that the asset has been in the possession of the former partner for more than four years and, even though it was advertised for sale throughout that entire period, for reasons not clarified in the proceedings, no deal was closed.
On account of the time elapsed, the rapporteur considered it unreasonable to deny the request for judicial sale, given that the exclusive use by the woman prevents her former partner from disposing of the property.
The understanding adopted by the TJPR – the justice assessed – deprived the plaintiff of one of the attributes inherent to the right of ownership, depriving him of the possibility of disposing of the asset that belongs to him.
Each co-owner is accountable to the others for the fruits received from the asset
Regarding the rent that would be owed by the resident of the property, the rapporteur emphasized that the case law of the STJ is oriented to the effect that, until the property is divided, the couple’s ownership of the asset remains, under the rules governing the institute of co-ownership, notably that which establishes that each co-owner is accountable to the others for the fruits they received from the thing, under the terms of Article 1,319 of the Civil Code.
“If only one of the co-owners resides in the property, the avenue of indemnification opens up, through the payment of rent, to the one who is deprived of the enjoyment of the thing”, he highlighted.
However, in the case under analysis, at the time of the dissolution of the stable union it was agreed that the woman would remain residing in the property, without the need to pay for it, until the sale of the asset – which, according to the justice, bars the charging of rent.
Also read this case
Former partner who remained in the couple’s property must pay rent
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