The family property is a fundamental legal institution in Brazilian law, established to protect the residential property of the family unit against forced executions, ensuring the safety and stability of the home. However, this protection is not absolute. In certain situations, the family property can be foreclosed or lose its condition of unseizability.
This article explores the concept of family property, its characteristics, situations that lead to its decharacterization, the precautions owners should take to avoid losing the property, and the interpretation of courts, especially the Superior Court of Justice (STJ), on the subject.
1. Concept of Family Property
The family property, as defined by Law No. 8.009/1990, is the residential property used by the family unit, which enjoys protection against foreclosure for the payment of debts.
There are two main types of family property:
Legal Family Property: Automatically instituted by law, this type protects any property used as a family residence, without the need for a specific declaration or registration.
Conventional Family Property: Provided for in the Civil Code, this is voluntarily instituted by the owners through a public deed or will, requiring registration at the Real Estate Registry Office. In addition to real estate, essential household goods can be included.
2. Characteristics and Protections of Family Property
Family property is characterized mainly by:
Unseizability:Â Protection against foreclosure, preventing the property from being used to pay debts, except in cases provided by law.
Relative Inalienability: Although protected, the property is not absolutely inalienable. It can be sold or given as collateral, as long as legal formalities are respected.
Limitation on Patrimonial Responsibility: Family property limits the debtor's patrimonial responsibility by not allowing the residential property to be used to settle common debts.
3. Situations Leading to the Decharacterization of Family Property
Despite the protection granted by Law No. 8.009/1990, there are specific situations where the family property can be foreclosed, meaning its protection is relativized:
Debts Related to the Property: Protection does not apply to debts arising from taxes, fees, and contributions due to the property itself, such as property tax (IPTU) and condominium fees.
Financing for Acquisition or Renovation: If the debt was incurred for the purchase, construction, or renovation of the property, protection is suspended, allowing foreclosure.
Foreclosure for Surety in Lease Contracts: The STJ, through Súmula 549, recognizes the possibility of foreclosing the family property of the guarantor in lease contracts. This is one of the most debated exceptions, as it conflicts the protection of housing with contractual freedom and the social function of the contract.
Alimentary and Labor Debts: Family property can be foreclosed to pay alimentary and labor debts, considering that these debts have priority due to their importance for the creditor's subsistence.
4. Necessary Precautions to Avoid Losing the Property
To avoid losing the family property, owners must adopt a cautious and informed stance, especially in situations involving financial commitments or guarantees to third parties. Here are some practical recommendations:
Careful Analysis When Signing Surety Contracts:Â Accepting the role of guarantor in a lease contract can expose the property to foreclosure. Many owners, in an attempt to help family or friends, assume this responsibility without fully understanding the legal consequences. Evaluating risks and considering alternatives, such as surety insurance, can avoid the loss of the property.
Regularization of Tax and Condominium Debts: Keeping property-related taxes, such as IPTU and condominium fees, up to date is essential. Delinquency can result in foreclosure, one of the main exceptions to the protection of family property.
Formalization and Registration of Conventional Family Property:Â If opting for the institution of conventional family property, ensure that all legal procedures are followed rigorously. The absence of registration or formalization failures can result in the loss of protection.
Patrimonial and Succession Planning: Consider strategies such as the creation of usufruct, donations with unseizability, inalienability, and incomunicability clauses to protect family assets. These legal instruments help preserve the property within the family and avoid foreclosure.
Permanent Legal Consultancy: Maintaining continuous legal advice is an effective preventive measure. A lawyer specializing in real estate law can provide guidance on the risks associated with decisions involving the property, as well as monitor legislative and jurisprudential changes that may affect the protection of family property.
5. Position of the Courts and the STJ
The Superior Court of Justice (STJ) plays a crucial role in defining the exceptions to the unseizability of family property. The Court's jurisprudence over the years has balanced the protection of the residential property with the rights of creditors, recognizing that unseizability is not absolute. The following interpretations stand out:
Foreclosure for Surety in Lease Contracts: The STJ supports the foreclosure of the guarantor's family property in lease contracts, arguing that the guarantor, by voluntarily assuming the obligation, exposes their assets to the risk of execution, including the residential property.
Alimentary and Labor Debts: In cases of alimentary and labor debts, the STJ has authorized the foreclosure of family property, justifying that the protection of the creditor's subsistence prevails over the unseizability of the property.
Conclusion
Family property is a legal protection of great importance in Brazilian law, but its unseizability has well-defined limits. The exceptions provided by law, such as tax debts, financing, surety in lease contracts, and alimentary and labor debts, must be known and understood by property owners.
For those who wish to help family or friends, it is essential to adopt a cautious stance, evaluating risks and seeking alternatives that do not compromise the security of the family home. Proper formalization of conventional family property, keeping taxes up to date, patrimonial and succession planning, and continuous legal consultancy are measures that can prevent the loss of the property.
Staying updated on STJ interpretations and changes in legislation is essential to ensure that the protection of family property remains valid and effective, thereby preserving the family's assets and stability.