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TJ/SP Decides That Heir Outside the Inheritance Property Should Receive Monthly Compensation for Exclusive Use of the Asset, Reinforcing Understanding Against Unjust Enrichment.
A recent decision by the São Paulo Court of Justice (TJ/SP) rekindled discussions in family law and succession by confirming that an heir who solely occupies an inherited property should pay monthly compensation to the sibling who is prevented from benefiting from the asset. The case, judged by the 3rd Chamber of Private Law, gained prominence after the court reaffirmed that the exclusive use of a property in condominium — especially in the context of an estate — creates a clear economic obligation: those who occupy pay; those who are excluded have the right to receive.
The decision in question was recorded in case 1038685-53.2023.8.26.0002, cited by the Migalhas portal and by TJ/SP itself, and reinforces an understanding that has been increasingly consolidated by the Superior Court of Justice (STJ): using an asset that belongs to all heirs alone constitutes unjust enrichment, which legitimizes the charge for compensatory rent or monthly indemnity.
The Concrete Case: One of the Siblings Lived in the Property and Prevented the Other from Access
According to the records, two siblings were co-owners of a property left by their parents. One of them started living alone in the property, fully benefiting from the house. The other, although he was also the owner of the ideal half, had no access to the property and could not use it at all.
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The situation led to a legal dispute, and the excluded heir requested two measures:
- court authorization to sell the property, since there was no agreement among the co-owners;
- monthly payment for the exclusive occupation practiced by the resident sibling.
The São Paulo court accepted both requests: it authorized the sale of the property and determined monthly compensation to the aggrieved heir in the amount of R$ 755.55, set based on the property’s appraisal.
Why Did TJ/SP Decide This Way? The Legal Basis Is Clear
The Brazilian Civil Code establishes that no co-owner is obligated to remain in a condominium against their own will (art. 1.322). It also dictates that the exclusive use of a shared asset must respect the rights of the other co-owners.
When an heir occupies an inherited property alone, he is:
- preventing the other from using the asset;
- gaining an economic advantage that is not shared;
- exercising exclusive direct possession over a common asset;
- benefiting in a way that exceeds his ideal fraction.
For the court, this characterizes unjust enrichment, generating the duty of financial compensation to the excluded co-owner.
TJ/SP emphasized that the indemnity does not depend on the excluded heir proving concrete harm — it is enough to demonstrate that he does not benefit from the property and that the other is the sole benefactor.
Monthly Compensation Functions as a “Proportional Rent”
The payment determined by the court was calculated as an amount equivalent to the market rent, divided according to the ownership fraction of each heir. In the analyzed case:
- the residing heir used 100% of the property,
- but owned only 50% of the rights.
Thus, half of the rental value should be transferred to the other brother — exactly what the court determined.
This calculation model is widely used in various state courts and aligns with the jurisprudence of the STJ, which has already consolidated the understanding that exclusive possession of a common asset generates the obligation for indemnity, even in the absence of a rental agreement between the parties.
The Decision Also Authorized the Sale of the Property — Even Without Consensus
Another important aspect of the decision is that TJ/SP authorized the judicial sale of the property, since the siblings could not reach an agreement. This was possible because the law allows any co-owner to request the dissolution of the condominium, especially when the asset is indivisible — like a house or apartment.
With this, the court determined:
- the appraisal of the property;
- the sale of the asset;
- and the division of the value among the heirs.
This measure prevents the property from remaining idle for years, deteriorating or causing ongoing conflicts between the successors.
What This Decision Represents for Other Heirs in Brazil
The understanding reaffirmed by TJ/SP is important because it addresses an extremely common situation: one of the heirs occupies the property, while the others — even being owners — do not have access. In many cases, the occupying heir believes he owes nothing to the siblings and can remain indefinitely in the property without any compensation.
But the decision shows that:
- there is no right to free exclusive use in inherited property;
- the heir outside the property has the right to receive monthly compensation;
- the payment is independent of bad faith — it is enough that there is exclusive use;
- any heir can request the sale of the property, even without consensus;
- the value of compensation is based on market rent.
Courts in other states have also been adopting this understanding, and the STJ has already consolidated similar decisions, reinforcing that the excluded heir has protected economic rights.
When Is Compensation Required?
Current jurisprudence indicates that payment is due when:
- the property is exclusively used by one heir;
- there is no agreement among the co-owners;
- the excluded heir does not benefit from the asset;
- the exclusive use generates economic advantage for one of the siblings.
It does not matter if the residing heir pays property taxes, utilities, or maintenance: these expenses do not substitute the compensatory rent.
A Decision That Protects the Rights of Co-Owners
The decision of the 3rd Chamber of Private Law of TJ/SP reinforces an essential rule of inheritance law: whoever uses the property pays; those who do not use have the right to receive.
This understanding protects equality among heirs, reduces conflicts, prevents one of them from being economically harmed, and prevents properties from remaining idle while disputes drag on in the estate or condominium.
The decision also demonstrates that judicial sale and monthly compensation are legitimate instruments to resolve situations where coexistence among co-owners is unfeasible.
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Uma pessoa reagiu a isso.