The Fourth Panel of the Superior Court of Justice (STJ) denied the appeal of the owners of an apartment who invoked the non-attachability of the family home offered under a fiduciary transfer (alienação fiduciária) as security for a loan to a company belonging to one of the property’s owners. In the panel’s view, the rule of non-attachability of the family home cannot be applied when there is a violation of the principle of objective good faith.
“The unrestricted protection of the family home is not admissible if such protection means the loss of the security after default on the debt, contrary to the ethics and good faith that are indispensable in all business relationships,” states the rapporteur of the appeal.
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Non-attachability of the family home must prevail for a property under fiduciary transfer
According to the case file, one of the apartment’s owners borrowed the amount of R$ 1.1 million from the bank, with the aim of forming working capital in the company of which she is the sole owner. In the transaction, she offered as security the property that she owns jointly with another person, and both voluntarily signed the fiduciary transfer contract.
Enforcement
Since the businesswoman was not paying the loan installments, the bank filed the request for enforcement of the security. In an attempt to prevent the property’s ownership from being consolidated in the creditor’s name, the appellants brought a precautionary action and, by means of an injunction, managed to temporarily set aside the consequences of the default.
At first instance, the request for nullity of the security contract was dismissed and the previously granted injunction was revoked. The Court of Justice of the Federal District (TJDF) upheld the judgment, holding that the legal agreement was entered into in full exercise of the autonomy of those involved and without any defect that would taint it.
The local court stated that the businesswoman who offered the apartment as security has a peculiar characteristic, since she forms part of the family nucleus while at the same time being the owner of the company that benefited from the loan. For the TJDF, the argument that the money received did not benefit the family is invalid.
In the special appeal presented to the STJ, the appellants alleged that one of the property’s owners is not a partner of the company and would not have benefited from the loan. They requested recognition of the property’s non-attachability, as it is a family home, and the declaration of nullity of the mortgage established over it.
Public order
The rapporteur emphasized that the STJ’s case law recognizes that the legal protection conferred on the family home by Law 8,009/1990 cannot be set aside by the debtor’s waiver of the privilege, as it is a principle of public order that prevails over the will expressed.
The justice stressed that the sole residential property is non-attachable and will not answer for any type of civil, commercial, tax, social-security, or other debt, except for the legal exceptions or when there is a violation of objective good faith.
According to him, the rule of non-attachability applies to situations of regular exercise of the right. “The abuse of the right of property, fraud, and the owner’s bad faith must be repressed, rendering ineffective the protective norm, which cannot coexist with, tolerate, or reward the agent’s action in nonconformity with the legal order,” he observes.
The rapporteur clarifies that fiduciary ownership is a legal transaction of conditional transfer, it being necessary that the transferor who takes the loan accept the transfer of ownership so that the bank has security for the payment.
Abuse of right
According to the justice, the understanding established by the Third Panel in REsp 1,141,732 set that the finding of the debtor’s good faith is determinative in order for the protection of non-attachability provided for in law to be recognized.
“The abusive use of this right, in violation of the principle of objective good faith, must not be tolerated, and the benefit conferred on the holder who exercises the right in nonconformity with the legal order must therefore be set aside,” he stresses.
In the case analyzed, the rapporteur stated, the appellants freely chose to give their sole property as security, and there is no proof that any defect of consent occurred. “Contractual good faith is a general clause imposed by the Civil Code, which imposes on the contracting parties the duty to honor what was agreed and to fulfill the expectations previously created by their own conduct,” he declares.
The rapporteur further noted that, in cases where the loan is used in a company whose sole partners are the spouses, owners of the property, it is presumed that the family entity benefited. “The debt being due and unpaid, in whole or in part, and the fiduciant being constituted in default, the ownership of the property will be consolidated in the name of the fiduciary, a subsequent consequence, provided for, moreover, in the governing legislation,” he concludes.
Illustrative photo
Source: STJ
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