Lease agreements are widely used in Brazil to regulate relationships between landlords and tenants, especially in the real estate sector. One of the central elements that can arise in this contract is the figure of the guarantor, who assumes responsibility for ensuring the tenant's obligations are fulfilled.
This article aims to analyze the guarantor’s responsibility in the leasing context, highlighting the legal foundations, limits of their liability, and situations that may lead to their release, based on current legislation and applicable case law.
Legal Foundations of the Guarantee in Lease Agreements
According to the Brazilian Civil Code, the guarantor is the party who, through a guarantee contract, ensures compliance with a primary obligation assumed by the tenant. In the context of urban leases, this relationship is also regulated by Law No. 8,245/1991 (Tenancy Law), which, in Article 37, provides for the inclusion of contractual guarantees, such as the guaranty, to secure the payment of rent and lease-related expenses.
By accepting the role of guarantor, the person or entity assumes joint responsibility for the tenant's obligations, which means that if the tenant fails to fulfill their obligations, the landlord may directly require the guarantor to pay the debt.
Extent of the Guarantor’s Responsibility
The guarantor’s responsibility is broad and covers not only unpaid rent but also additional charges, such as condominium fees, contractual fines, and court costs, provided these are expressly stated in the lease agreement. The Superior Court of Justice (STJ) has established that the guarantor can be held responsible for all obligations arising from the lease contract, as long as they are expressly stipulated.
However, the guarantor's responsibility must respect the agreed-upon limits. This means they are only liable for what is specifically stated in the guaranty contract. If the contract does not clearly define the scope of their responsibility, the courts tend to interpret it restrictively, limiting the guarantor’s obligation to the principal payments.
Waiver of the Benefit of Excusion
In general, the guarantor may invoke the benefit of excusion, as provided in Article 827 of the Civil Code, to require the landlord to first execute the tenant's assets before holding them liable. However, this prerogative can be expressly waived in the guaranty contract. In cases where this waiver is made, the guarantor can be directly pursued by the landlord without the need to exhaust efforts to collect from the tenant.
Guaranty Extension and the Tenancy Law
Article 39 of the Tenancy Law introduces an important point: the automatic extension of the guaranty if the lease agreement is extended for an indefinite period. If the guarantor does not express their intention to be released, their responsibility remains in effect, even after the original term of the contract ends. This has generated extensive legal debate, as many guarantors end up being surprised by the continuation of their obligations under contracts extended indefinitely.
Release of the Guarantor
There are some situations that allow the guarantor to be released, thereby ending their responsibility. One of the primary ways for release is the termination of the lease agreement, which automatically concludes the guarantor’s obligations. Another means occurs when the guarantor states their intention not to continue guaranteeing a contract extended for an indefinite period, in accordance with Article 40 of the Tenancy Law. In this case, the guarantor remains liable for an additional 120 days from the date of notification to the landlord.
Furthermore, substantial changes to the lease agreement without the guarantor’s consent may also result in their release, as established by STJ case law. This includes, for example, significant changes in the rent amount or contract duration.
Guarantor’s Responsibility in Cases of Death and Divorce
In the event of the guarantor's death, their heirs may be called upon to fulfill obligations up to the amount of the inherited estate, following general principles of Civil Law. In divorce situations, if the guaranty was provided by one spouse, the responsibility may continue to fall on the guarantor, except if a specific clause to the contrary exists in the guaranty contract.
Conclusion
The guarantor’s responsibility in lease agreements is a complex topic that is widely regulated by Brazilian legislation and case law. Although the guarantor plays a crucial role in securing lease relationships, they also assume significant risks in accepting this responsibility. It is essential for guaranty contracts to be clearly drafted, outlining the guarantor's obligations, and for the guarantor to be fully aware of the legal implications of their commitment.