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STF Confirms That Guarantor’s Property Can Be Seized in Lease Agreements, Even If It Is a Family Home, and the Decision Causes Controversy in the Real Estate Market.
In Brazil, the rental market is one that moves billions of reais every year. To ensure payment, it is common for landlords to require a guarantor – someone who is responsible for the debts in case the tenant fails to fulfill the contract.
But the question has always been in the air: if the guarantor has only one residential property, can they lose it in case of the default of the debtor?
The Federal Supreme Court (STF) answered clearly: yes, the family property of the guarantor can be seized in lease agreements. The decision, with general repercussion, generated strong controversy in the market and concerns both landlords and tenants.
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The STF Decision
In 2021, in the judgment of Extraordinary Appeal 1.307.334, with recognized general repercussion, the STF confirmed the constitutionality of Article 3, VII, of Law No. 8.009/1990.
This provision states that family property is not protected against seizure when it comes to a lease guarantee contract.
In practice, the STF understood that by agreeing to be a guarantor, the person voluntarily assumes the risks of the contract, including the risk of losing their only property.
Why the STF Maintained the Seizure
The ministers argued that the institution of guarantee is essential for the viability of the rental market. Without the possibility of execution against the guarantor’s family property, many landlords would stop renting, increasing legal insecurity and reducing the supply of available properties.
The winning vote highlighted that the rule seeks to balance the interests between landlords and tenants, ensuring safety for those lending their assets and maintaining access to rental housing for millions of families.
Critiques of the Decision
Despite the reasoning, the STF’s decision generated many criticisms. Lawyers and consumer defense entities argue that allowing the seizure of the guarantor’s only property can lead entire families to the streets for debts they did not incur directly.
Critics argue that this interpretation violates the principle of social function of housing, as provided by the Constitution, and places the guarantor in a situation of extreme vulnerability.
There are those who advocate that the market should seek more modern alternatives for guarantees, such as rent insurance or capitalization bonds, without exposing the guarantor to such risk.
Impacts on the Real Estate Market
The STF’s decision reinforces the importance of the guarantor as rental security, but it also generates fear. Many people are giving up being guarantors, fearing losing the only property of their family.
On the other hand, landlords celebrated the decision, as it brings more legal security and reduces the risk of default.
This impasse may accelerate the growth of alternative solutions, such as:
- Rent Insurance (paid monthly by the tenant);
- Cash Deposit (up to three rents deposited in advance);
- Guarantee by Capitalization Bond.
Practical Examples
- A mother who agrees to be the guarantor for her son’s lease can have her apartment seized if the son fails to pay the rent.
- A retiree who guarantees his grandson’s contract is also at risk of losing the only property where he resides.
- For the landlord, the decision means greater ease in collecting debts without facing long fruitless processes.
What the Guarantor Should Evaluate Before Signing
The STF’s decision makes it even more urgent to reflect: before agreeing to be a guarantor, it is essential to understand the risks. The act of signing the guarantee means, ultimately, putting one’s own house at stake.
Lawyers advise that, if possible, the candidate for guarantor should opt for other guarantees or require clear payment terms and deadlines from the tenant.
The STF put a final point in the legal discussion, but the controversy continues in the public debate. For some, the decision guarantees security in the market. For others, it exposes families to irreparable losses.
The fact is that from now on, no one can claim ignorance: being a guarantor means assuming the real risk of losing the only property, even if it is family property.
Prá eles é muito fácil decidir isso, afinal suas famílias são milionárias e não precisam ser fiador de ninguém, decisão absurda e arbitrária , não pensam na população, vergonha
O fiador nunca tem o esclarecimento suficiente quanto ao assunto. Seja em decorrência da legislação, seja em decorrência da decisão do STF, que protege os mais favorecidos (locadores , associações e todos os lobistas (ou interessados) que foram admitidos a esse julgamento.
Não há qualquer cláusula ou condição esclarecedora no contrato de locação, em detrimento do fiador, pessoa de pouco conhecimento, com um único imóvel destinado a sua residência.
Indústria da fiança por trás, e claro com esse entendimento protege patrimônio dos juízes né, mas eles não sabem que imobiliárias pedem 10 vezes mais o depósito caução e não 3 como manda a lei ,fazem de tudo para evitar fiador