Post by account_disabled on Mar 13, 2024 9:34:25 GMT
In the decision handed down by the th Panel of the which was defeated by the vote given by Minister Raul Araújo the understanding was established that in an action to execute condominium debts it is possible to seize the property that originated the debt even if it is financed with fiduciary alienation due to the propter rem nature of the condominium debt provided for in article of the Civil Code.
This understanding given by the th Panel of the STJ by a majority vote granted the special appeal to allow the seizure but highlighted the need for the condominium responsible to summon the bank fiduciary creditor in addition to the fiduciary debtor.
According to Minister Raul Araújo in CG Leads relation to Minister Nancy Andrighi's vote in the files of REsp nº ..RS he understands the solution to be correct in such a context for a common creditor “the normal creditor of a condominium owner in that situation. Such creditor will not be able to seize the debtor's property as the asset is sold on fiduciary basis to the fiduciary creditor who is the holder of the resoluble property of the immovable property”.
The minister continues in his reasoning in the sense that “when the creditor of the debtor condominium is the condominium itself the solution does not fit. In relation to the condominium-creditor itself given the propter rem nature of condominium expenses under the terms of article of the Civil Code of there will be a need to promote the summons in the execution action also of the fiduciary creditor in the aforementioned contract to that comes to join the dispute enabling the holder of the right provided for in the fiduciary alienation contract to pay off the existing condominium debt and in a regressive action try to obtain the return of these amounts from the fiduciary debtor”.
Such intellect is in the sense that the fiduciary creditor cannot be involved in immunity against condominium debt granting greater rights than those that any owner has.
That is the rules regarding fiduciary alienation do not override the rights of third parties who are not part of the financing contract — such as in this case the condominium creditor of the condominium debt which retains its legal nature propter rem.
Minister Raul Araújo highlights in his vote that “ propter rem nature is directly linked to the right to property over the thing. Therefore it takes precedence over the rights of any owner including the fiduciary creditor as this owner subject to a resolutive condition cannot hold greater rights than the full owner”.
This understanding given by the th Panel of the STJ by a majority vote granted the special appeal to allow the seizure but highlighted the need for the condominium responsible to summon the bank fiduciary creditor in addition to the fiduciary debtor.
According to Minister Raul Araújo in CG Leads relation to Minister Nancy Andrighi's vote in the files of REsp nº ..RS he understands the solution to be correct in such a context for a common creditor “the normal creditor of a condominium owner in that situation. Such creditor will not be able to seize the debtor's property as the asset is sold on fiduciary basis to the fiduciary creditor who is the holder of the resoluble property of the immovable property”.
The minister continues in his reasoning in the sense that “when the creditor of the debtor condominium is the condominium itself the solution does not fit. In relation to the condominium-creditor itself given the propter rem nature of condominium expenses under the terms of article of the Civil Code of there will be a need to promote the summons in the execution action also of the fiduciary creditor in the aforementioned contract to that comes to join the dispute enabling the holder of the right provided for in the fiduciary alienation contract to pay off the existing condominium debt and in a regressive action try to obtain the return of these amounts from the fiduciary debtor”.
Such intellect is in the sense that the fiduciary creditor cannot be involved in immunity against condominium debt granting greater rights than those that any owner has.
That is the rules regarding fiduciary alienation do not override the rights of third parties who are not part of the financing contract — such as in this case the condominium creditor of the condominium debt which retains its legal nature propter rem.
Minister Raul Araújo highlights in his vote that “ propter rem nature is directly linked to the right to property over the thing. Therefore it takes precedence over the rights of any owner including the fiduciary creditor as this owner subject to a resolutive condition cannot hold greater rights than the full owner”.