By: Vitor Ferrari and Ivan Kubala.

After unanimous decision, The 3rd Panel of the Superior Court of Justice ruled that a property transferred in trust was not subject to seizure, the seizure of which was requested in an action to enforce condominium expenses that were the responsibility of the trust debtor. In other words, according to the Court's understanding, the asset given as a fiduciary guarantee cannot be subject to judicial seizure to settle debts owed to third parties, since the property, even if resolvable, belongs to the fiduciary creditor.

In Brazilian law, fiduciary alienation is the transfer of ownership of an asset as collateral for the payment of a debt. The ownership of the asset remains under the custody of the creditor until the debtor settles his obligations, at which point the ownership of the alienated asset returns to his domain.. The asset itself is the guarantee that the fiduciary creditor has against possible losses resulting from the debtor's default, since in this case, he may dispose of the asset to return the amount owed to him.

Fiduciary alienation is very common in everyday life, especially when there is bank financing for the acquisition of vehicles or properties. In these cases, the amount that the financial institution grants through a loan to the borrower is guaranteed by the asset itself. Thus, even though the buyer has purchased the asset, its true ownership belongs to the financial institution that granted the loan, until it is paid off.

Since ownership of the asset will remain with the fiduciary creditor only as long as there is credit to be paid, the name given to this property is resolvable.. The fiduciary creditor has ownership of the asset, however, as it is resolvable, he cannot dispose of it.

In the case under discussion, the Superior Court of Justice understood precisely this: although the debtor of condominium expenses uses the property itself, it cannot be sold to settle his condominium debts, as the true ownership, even if resolvable, belongs to the fiduciary creditor.

However, according to the understanding of Minister Nancy Andrighi, the rapporteur of the case, although the property is unattachable due to being fiduciary alienated, the possibility of seizure of real right of acquisition is reserved, that is, the creditor of the condominium debt may take the place of its debtor, and after paying off the credit, acquire full ownership of the property.

With the collaboration of Luís Felipe Simão