When judging Special Appeal 1.861.062/SP, the Third Panel of the Superior Court of Appeals (STJ) established the understanding that absence of consent from all co-owners to give possession of property to third parties does not give rise to nullity of the lease agreement.

The decision pointed out that the defects that can lead to nullity of the contract are those provided for in articles 166 and 167 of the Civil Code, and that the legislation does not require the presence of all owners in the lease instrument.

In this case, there was a civil condominium on the property subject to the dispute initially formed by six owners, each a co-owner of a fraction of 1/6 of the property. The plaintiff, one of the co-owners, rented the property without the signature of the others and, subsequently, due to default of the tenant, sought termination of the lease, issuance of an eviction order, and collection of the amount referring to rents due and yet to mature. In an unusual manner, the appellants, in turn, although owners of 2/6 of the property and also creditors of the rent payments, defended the nullity of the contract, alleging that they had not agreed to the lease of the property and that the plaintiff had not demonstrated that he had the consent of the other co-owners to sign the contract in question.

The reporting judge Villas Bôas Cueva found that the theory of nullity could not be accepted, thus releasing the tenant from any obligation, especially due to the principle of prohibition of unjust enrichment, provided for in article 884 of the Civil Code, in view of the undisputed default in the record. In addition, he stressed that although the transfer to third parties of possession of a property held in a condominium requires consent of the absolute majority of the co-owners (and not unanimously), the absence of such consent does not give rise to nullity of the agreement or remove its legal effects.

Specifically in relation to the issue of the consent of the absolute majority of the condominium members as opposed to the unanimous consent, it is worth pointing out that, by express legal provision of article 1,324 of the Civil Code, in the absence of opposition from the others, the condominium member that manages the property is presumed to be the common representative and may formally enter into the lease agreement on behalf of the others. It is also worth pointing out that in order to appear as lessor of a property, the lessor needs to possess it and not necessarily be its owner.

Still on the protection of tenants' rights, article 169, subsection III, together with article 167, subsection I, No. 3, and subsection II, No. 16, of Law No. 6,015/1973 (the Public Records Law), makes it clear that, for purposes of registration of the term of duration provision and annotation of the tenant's preemptive right in the proper Real Estate Registry Office, it is sufficient that the name of one of the owners and the lessor coincide. This supports the understanding that it is not necessary for all co-owners to attend and sign the lease agreement as lessors.

However, it is common for real estate registry offices to impose requirements requesting the attendance of all owners in the lease agreement, despite the legal provision and case law on the subject. In order to avoid future questions, it is recommended that, when entering into a lease agreement of a property held in a civil condominium (co-ownership), at least a resolution of the absolute majority of the joint owners be presented, even if not all of them are parties to the lease agreement.

Even so, if the registrar opposes registration of the lease agreement entered into by only one of the co-owners, it is possible to challenge it by indicating the provision of express law and case law on the subject. Therefore, this lease agreement is existing, valid, effective among the parties, and subject to registration and recording in the real estate registry in order to protect the tenant's rights.