In the judgment of the Special Appeal 2.059.278/SC (REsp 2.059.278/SC), which took place at the end of May, the Superior Court of Justice (STJ) issued a decision in favor of the condominiums on the possibility to execute and to auction properties in default with the condominium quotas, even if these properties are recorded with fiduciary alienation resulting from financing for acquisition.

The decision is unprecedented because, historically, the STJ has always positioned itself in the sense of not allowing the pledge and auction of the property for condominium debts, in cases where the property was the object of fiduciary alienation to guarantee its acquisition.

The understanding was that the responsibility for paying the condominium expenses would fall on the fiduciary debtor as long as he was in direct possession of the property. In other words, it would be a debt of the debtor, not liable to be satisfied with the foreclosure of the property that, in a resolute character, temporarily ceased to be part of his patrimony.

The charge could only be assigned to the fiduciary creditor (usually banks or financial institutions) after the consolidation of ownership for them. This understanding also aligns with Law 9,514/17 (Law of Fiduciary Alienation), to the extent that, in the event of consolidation of the property by default of the debtor, the fiduciary creditor receives the property in the state in which it is, even with the previous condominium debts, since these debts are obligations of a propter rem character – that is, are tied to the property.

In contrast to the already consolidated guidance, the STJ held that the rights of the fiduciary owner should not override the rights of the common owner. Thus, the property can now be pledged and auctioned in case of debt with the condominium.

The decision of the STJ, in a way, consolidates the understanding expressed in some state courts (such as the Courts of Justice of São Paulo, Rio Grande do Sul, Goiás and Mato Grosso do Sul), which have been issuing decisions allowing the pledge and auction of the property whose acquisition was guaranteed by fiduciary alienation of the property itself.

These decisions are based on two main points:

  • in the risk-taking of the fiduciary creditor through the covenant with the fiduciary debtor; and
  • in the protection of the community, since the other condominium owners were paying for the unit in default.

However, due to the mismatch of the decisions of the state courts with the jurisprudence of the STJ until then consolidated, the case of a condominium in Santa Catarina was taken to the Court. At the time, the STJ issued the decision contrary to its own jurisprudence in favor of the fiduciary creditors.

When analyzing the arguments presented, the STJ also focused on the social issue, considering that the default harms other residents.

The STJ's change of understanding also reflects the protection of collective rights in overlap with individual interests. The court used objective and actual economic factors as the criterion for its decision.

There is still no evidence to state whether the decision rendered in REsp 2.059.278/SC is isolated or whether, with it, the STJ signals the possibility of changing its position and rediscussing the issue.

Therefore, we recommend that fiduciary creditors review their preventive debt default measures when agreeing to fiduciary alienation agreements and reassess the risks to be imputed in their negotiations. We also suggest analyzing the cases with pending issues that are in progress, to verify the possibility of alternatives that satisfy the condominium credits, without prejudice to the credit to be received due to the fiduciary alienation.