Constitutionally guaranteed (article 5, XXII, Federal Constitution of 1988), the right to property is defined as the right of the owner to use, enjoy, dispose of, and claim the thing (article 1,228, Civil Code).
When the right of ownership is exercised by two or more people over the same property, the so-called common condominium or co-ownership is given, in which the owners become owners of an ideal fraction of the whole. Thus, it is not possible for the co-owners to exercise their rights independently over the entirety of the thing, but only their ideal parts.
In the light of article 87 of the Civil Code, assets that cannot be fractioned without changes in their substance, considerable decrease in their value or impairment of the use for which they are intended, such as buildings, especially urban buildings, and housing units are indivisible. Co-ownership is assigned, for example, to properties acquired by couples (in the proportion of half for each spouse) or properties allocated in inventory to various heirs (in the proportion attributed to each of them in the division).
In a recent decision, the Third Panel of the Superior Court of Appeals (STJ) assessed the limit of the exercise of ownership on indivisible real property when one of the co-owners has debt that, collected in court, gives rise to attachment of the property.
The decision modified the judgment handed down by the Court of Appeals of the Federal District and Territories (TJDFT), which ruling for the impossibility of full expropriation via judicial auction of property held in a condominium pro indiviso, on the grounds that the attachment fell only on the share (50%), not on the entire property. Thus, the STJ allowed full judicial auction of indivisible property duly registered under co-ownership and whose attachment recorded only the debtor's share.
In her opinion, Justice Nancy Andrighi pointed out that banning foreclosure on the good makes attachment ineffective, since it prevents satisfaction of the creditor. On the other hand, article 655-B of the Code of Civil Procedure provides that the right of the co-owner when the attachment is executed must be observed. A very relevant point of the decision handed down by the Supreme Court is the clear protection of the real right of ownership of the condominium unrelated to the execution, stating that the attachment cannot advance on the share of the party that is not a debtor in the proceedings, even if this fact does not prevent the disposal of the entire property.
In clear grammatical and declarative interpretation of the rule, the decision also demonstrates the intention of the civil procedural legislature to (i) give greater effectiveness to the foreclosure procedure to satisfy the creditor's right by removing formal obstacles and expanding the foreclosure measures and (ii) safeguarding the ownership right of the co-owner.
The precedent of the STJ gives the co-owner direct of preference in the auction of the property in equal positions or, if it does not want or is not able to exercise such right, the possibility of being compensated financially for the proportion of ownership it holds in the property, considered to be the value established in the judicial appraisal for the purposes of the auction and not that which is actually obtained in the judicial auction.
In fact, when analyzing article 843 of the Code of Civil Procedure, which upheld the decision handed down by the Supreme Court, it is clear that the legislature intended to protect the assets of the co-owner foreign to the foreclosure process by the measures listed above.
Thus, the STJ ruled that the creditor cannot have his credit right reduced due to the co-ownership, provided that the right of the co-owner is protected.
In practice, although the attachment falls only on the debtor's part, the co-owner may not prevent the sale of the property as a whole, unless he exercises his right of preference and acquires the entirety of the property. If he does not do so, the co-owner will then be reimbursed for the value attributed to the property in the judicial assessment, proportionally to his share.
This decision emphasizes the need to carry out rigorous due diligence when acquiring real property, since a request for a freeze to prevent continuation of foreclosure, brought by the co-owner outside of it, now has a significant precedent in the opposite direction, which allows continuation of the judicial sale and possible conversion of the co-owner's real property right in the equivalent in cash.