Law No. 8,009/1990 establishes the immunity from seizure of homestead property (exempt property), aiming to protect the fundamental right to housing. However, Article 3, item V, of the same law provides an exception allowing the enforcement of a mortgage over property offered as collateral by the couple or the family entity.
The Superior Court of Justice (STJ), in ruling on Special Appeals No. 2.093.929 – MG and No. 2.105.326 – SP under the repetitive appeals system (Topic 1261), decided on June 13 that this exception to the immunity from seizure of homestead property is limited to situations in which the debt was incurred for the benefit of the family entity.
In the specific case of Special Appeal No. 2.093.929 – MG, the only shareholders of the debtor company were the owners of the mortgaged property.
In contrast, in Special Appeal No. 2.105.326 – SP, the real estate was granted as collateral by only one of the shareholders of the debtor legal entity.
Topic 1261: The STJ established that if the property is granted as collateral by only one of the shareholders of a debtor legal entity, it is, as a rule, immune from seizure, and the burden lies with the creditor to prove that the debt of the legal entity benefited the family entity. Conversely, if the only shareholders of the debtor company are the owners of the mortgaged property, the general rule is that the homestead property is subject to seizure, and it is up to the owners to demonstrate that the debt of the legal entity did not benefit the family entity.
In both cases, the special appeals were denied. In REsp 2.093.929 – MG, the property owners were the sole shareholders of the debtor company. Based on the established thesis, the property was presumed to be subject to seizure, and the appellants failed to provide evidence to rebut the presumption that the debt benefited the family entity.
In REsp 2.105.326 – SP, the lower court had already found that the financial transaction proceeds benefited the family entity, which justified the application of the exception under Article 3, item V, of Law No. 8,009/1990.
The theses established by the STJ are highly relevant for credit transactions secured by real estate collateral and involving individual guarantors, as they set clear criteria for applying the exception to immunity from seizure and for allocating the burden of proof, depending on the relationship between the property owners and the debtor legal entity.