Fiduciary alienation is a very common form of guarantee in the real estate market, both for commercial and residential properties. This form of guarantee gives the creditor ownership of the property until the debt is settled, being an efficient way to ensure compliance with the contract. However, there are cases in which the construction company, responsible for the sale of the property, borrows funds from banks to finance the work and, if it does not fulfill its obligations, the property can be resold to the buyer and put up for auction according to the flexibility established by the summary. 308 of the STJ. In this text, we will address the main aspects of commercial and residential fiduciary alienation, explaining the summary 308 of the STJ and how the default of the construction company can impact the sale and auction of the property.
1. Definition of chattel mortgage:
Fiduciary alienation is a mechanism in which the debtor (buyer of the property) transfers ownership of the good to the creditor (financial institution) as a guarantee of debt payment. This transfer takes place through a contract and a registration at the real estate notary, which establishes that the buyer will be considered the owner of the property only after full payment of the debt. That way, in case of default, the creditor has the right to repossess the property.
2. STJ Precedent 308 and its flexibility:
Sumula 308 of the STJ says that "the mortgage signed between the construction company and the financial agent, before or after the conclusion of the promise of purchase and sale, is not effective before the purchasers of the property". This means that, in practice, the buyer of the property is not responsible for the debts between the builder and the bank, as long as this promise of purchase and sale is registered before the mortgage.
3. Default by the builder and possible withdrawal at auction:
If the construction company borrows funds from banks to finance the work on the property and does not fulfill its obligations, it is possible that the property will be resold to the buyer and put up for auction. This is because, even in the face of default by the builder, the buyer can exercise his right to acquire the property, as established in summary 308 of the STJ. In this case, the buyer has the opportunity to assume the builder's financial obligations with the bank to prevent the property from being put up for auction.
Conclusion:
Fiduciary alienation is a form of guarantee used in the real estate market to ensure compliance with the purchase and sale contract. STJ summary 308 brings flexibility by establishing that the mortgage between the construction company and the financial agent does not affect the transfer of the property to the buyer. In case of default by the builder with the bank, the buyer has the opportunity to acquire the property directly from the bank, preventing it from being put up for auction. However, it is always important that all parties involved are aware of the contractual clauses to avoid future problems and guarantee the legal security of the business.
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