Inventoried property. The Court (Superior Court of Justice (STJ)) granted a special appeal filed by one of the co-heirs of an inventoried real estate asset, who sought recognition of the right of first refusal in acquiring the inheritance share of the sibling that had been assigned to a third party. The co-heir claims that he should have been previously informed of the sale proposal, since, pursuant to the provision of article 1,794 of the Civil Code, he holds a legal right of first refusal to purchase his sibling’s portion.
The reporting justice in the case, Justice Villas Bôas Cueva, emphasized that the co-heir is permitted to assign, in whole or in part, the rights that accrue to him in the open succession; however, “the prior notification of the co-heirs, for the purpose of exercising their right of first refusal, must be capable of ensuring them full knowledge not only of the assigning heir’s interest in the future disposal of his inheritance share, but also of the price and the payment conditions offered to the prospective third-party assignee.”
In 2010, the interested third party submitted a proposal to acquire the property in its entirety, but the heir who filed the action opposed the sale, which resulted in the denial of the issuance of a permit (alvará) for that purpose. As a result, the sibling filed a petition informing the court that he had assigned his inheritance rights to the third party.
The Court of Justice of Rio Grande do Sul (TJRS) held that the co-heir was aware of his sibling’s intention to dispose of his inheritance share; however, he only expressed interest in exercising his right of first refusal after the formalization of the instrument assigning the inheritance rights.
“The knowledge of such intention is unequivocal, and the appellant cannot now benefit from his own inaction and invoke it to disregard the valid transaction entered into,” the TJRS stated.
Faulty notification – The justice explained that the assignor did not properly notify the other co-heirs regarding the assignment of his inheritance share, having informed them only of the proposal to acquire the entire property. According to him, the appellant became aware of the assignment of his sibling’s inheritance rights only the following year, by means of the Electronic Justice Gazette (DJe), and made the full deposit of the price paid by the third party within the legal period of 180 days, pursuant to the provision of articles 1,794 and 1,795 of the Civil Code.
According to the justice, “the disposal of inheritance rights to an outside person requires, by force of the provisions of articles 1,794 and 1,795 of the Civil Code, that the assigning heir has offered the co-heirs his portion, enabling any of them to exercise the right of first refusal in the acquisition, ‘on equal terms’ (tanto por tanto), that is, for an identical value and under the same payment conditions granted to any outside third party interested in the assignment.” The decision was unanimous.
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