Put Vitor Antony Ferrari and Ivan Kubala*

The Extraordinary Appeal 1307334 is currently being processed by the Federal Supreme Court – STF, which specifically deals with the constitutionality of the (non)seizability of residential property held by a guarantor of a commercial lease instrument.

The Trial already has eight votes, all cast on August 12, and was suspended following a highly technical and close vote, resulting in a tie so far, with no forecast for its return.

The specific case dealt with in the aforementioned judgment was one of those that brought general repercussions to the subject, and the Justices of the TJSP ruled in the case in which a guarantor appealed the decision that authorized the seizure of his property. The Justices allowed the seizure of a property, which was the family's only asset, to settle the rental agreement.

The Guarantor argues that the commercial lease in the process must be treated differently from the residential lease, because, according to him, the right to housing that would apply to both the guarantor and the owner of the residential property applies to this case.

As stated, the topic in question is judged in general terms, that is, the ministers' decision must be replicated in all proceedings that are underway on the same matter.

Given its relevance, 146 (one hundred and forty-six) extraordinary appeals filed by guarantors against decisions of the TJSP on the same subject are pending judgment in the Supreme Federal Court alone. At the national level, due to the general repercussion, we have a total of 236 (two hundred and thirty-six) cases on the subject with their progress interrupted, awaiting the judgment of the aforementioned case, so that their movement can then be resumed.

The I. Rapporteur of the appeal, Minister Alexandre de Moraes, clarified in his reasons for voting that “The purpose is not to restrict the possibility of providing a rental guarantee for those guarantors who present themselves with a single property”.

Thus, for the rapporteur, the legal provision does not distinguish residential or commercial leases from the possibility of seizing the guarantor's family property. The Minister also stated that "If the legislator's intention was to restrict the possibility of the guarantor's seizure to residential leases, he would have made this reservation." Thus, in his vote, the Minister

Alexandre de Moraes (Rapporteur), denied the extraordinary appeal and proposed the following thesis (topic 1,127 of general repercussion): “The seizure of family property belonging to a guarantor of a lease agreement, whether residential or commercial, is constitutional”, and was supported by Ministers Roberto Barroso, Nunes Marques and Dias Toffoli.

Justice Edson Fachin, however, opposes the judgment in the terms presented by the Rapporteur, stating the thesis that “The family property of the guarantor of a non-residential lease agreement is unseizable”, granting the Appeal. This understanding is currently being supported by Justices Rosa Weber, Cármen Lúcia and Ricardo Lewandowski.

Given the relevance of the matter and aware of the changes that the outcome of this trial may bring, our office has a highly qualified team to guide its clients in accordance with the most up-to-date legislation and case law on the subject.