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Condominium may not use non-pecuniary measures to punish debtor

10/31/2016

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The condominium can not ignore the means expressly provided by law for the collection of condominium debt. The jurisprudence of the Superior Court of Justice (STJ) considers that the Civil Code (CC) is exhaustive when it establishes pecuniary sanctions for the case of default of condominium expenses.

According to Minister Marco Aurélio Bellizze, the Code of Civil Procedure (CPC) of 1973 already established the fastest rite, the summary, for the respective action of collection, precisely taking into account the need for urgency to satisfy the credit related to the Condominium expenses.

In the systematics of the new code, the minister explained, the condominium quotas became an extrajudicial title (article 784, item VIII), in order to enable the handling of executive action, making debt satisfaction even faster.

And one of the guarantees for debt satisfaction is the judicial constriction of the condominium unit itself, "not being allowed to debtor to deduct, as a matter of defense, the impenhorability of the property and being a family," said Bellizze. This is provided for in Law 8.009 / 90 and pacified under the STJ.

Tools

Another hypothesis contemplated in the CC is the possibility that the condominium, by means of the approval of three quarters of the residents, impose other pecuniary penalties, such as fines, in proportion to the gravity and the repetition of the conduct.

For Bellizze, "before all these instruments (of coercibility, guarantee and collection) put by the legal system, there is no legitimate reason for his condominium to separate."

Even so, it is not uncommon to reach the Judiciary, and specifically the STJ, complaints of condominium owners who were penalized in different ways, with sanctions that constrain and even reach their honor and image.

Common area

The prohibition on access and use of any common area by the condominium and its relatives - whether of essential social or leisure use, with the sole and illegitimate purpose of ostensibly exposing the debtors to the social environment in which they reside - Dictates of the principle of human dignity.

This position was adopted by the Third Class in August of this year, when judging a special residential condominium resort that would have prevented residents and relatives from attending the condominium club, based on a regimental forecast (REsp 1,564,030).

According to the ministers, the right of the joint owner to use common shares does not arise from the condition of condominium quotas, but from the fact that, by law, the real estate unit covers the corresponding ideal fraction of all common shares.

For this reason, "the sanction that prevents the condominium in arrears from having access to a common area (whatever its destination), by itself, denature the condominium's own institute, unduly limiting the correlated right of property" , Defended the reporter, minister Marco Aurélio Bellizze.

The class, in a unanimous decision, dismissed the appeal of the condominium, in accordance with the ordinary instances.

Essential Services

The lack of payment of condominium fees does not authorize the suspension, by determination of the general meeting of condominium owners, the use of essential services. For the Third Class, the substitution of means expressly provided for in law by the restriction to the delinquent condominium owner regarding the use of the elevators faces the right to property and its social function, in addition to the dignity of the human person (REsp 1,401,815).

In the special appeal judged by the group, the owner of an apartment in the Chopin Building, located in Vitória (ES), was surprised by the deprogramming of the elevators that gave access to the floor of her residence after failing to pay two condominium fees, which at the time of the Of the lawsuit cost almost R$ 3,000.

In the action for compensation for moral damages, she stated that, in going through financial difficulties, she was subjected to a vexatious situation, which caused her moral upheavals. The lower court considered that the measure was not unlawful, since it was approved at the meeting, with the express agreement of the author. The sentence was upheld by the Court of Justice of Espírito Santo.

Limited Autonomy

In the STJ, the owner maintained that the legal system provides specific sanctions for default of condominium quotas, that is, interest and fine.

"Since the elevator is not a mere comfort, in the case of a multi-storey building with only one apartment per floor, the applicant's apartment being located on the eighth floor, the equipment becomes essential to its own use of the exclusive property "Said Minister Nancy Andrighi, rapporteur.

According to her, although the condominium agreement, the internal regulations and other norms instituted by the general assembly are a manifestation of the autonomy of the will and have a force of law in the dependencies of the condominium, as in other legal relations of civil law, this private autonomy does not Is unrestricted, "being limited by other public norms cogentes", defended.

Forced execution

Thus, Andrighi said, private autonomy in the establishment of sanctions should be exercised "within the limits of the fundamental right to housing, the right to property and its social function and others, all enshrined in the principle of the dignity of the human person."

In order to resolve the default, the minister considered the execution enforced, and the creditor is allowed to enter into the debtor's assets to obtain the amount in arrears and penalties provided by law.

Andrighi also mentioned the possibility that the execution of the debt falls on the condominial unit that generated the obligation: "The STJ understands that the property, although it is a family property, is subject to the attachment in execution of Debt arising from default of condominium quotas. "

Fines and interest

Article 1,336, paragraph 1, of the CC provides that the condominium debtor with condominium expenses shall be subject to agreed moratorium interest or, if not foreseen, 1% per month and a fine of up to 2% on the debt.

The condominium, which repeatedly fails to pay the amount corresponding to the maintenance of the condominium - considered to be a harmful condominium or an anti-social condominium - may be required to pay a fine of up to ten times the monthly contribution for condominium expenses, according to severity and repetition, Provided that there is approval of three quarters of the joint owners in assembly.

However, the application of the sanction provided in article 1,337, caput and single paragraph of the CC, as emphasized by the Minister Luis Felipe Salomão, requires that the condominium "be a debtor reiterated and contumacious, not enough simply the involuntary default of some debts."

Solomon explains that "the legislative intention was to curb possible abuses and excesses eventually practiced by some condominiums, whose legal permissive should only be used when the conduct of the community reveals effective gravity."

Conustible debtor

In October 2015, the Fourth Panel debated the possibility of applying a fine above the level of 2% for the contumative debtor of condominium expenses, based on the rule inserted in article 1,337 of the CC.

The condominium of the Brasília Trade Center Building filed an action against the Ok Constructions and Enterprises Group aiming at the collection of ordinary and extraordinary condominial fees (REsp 1,247,020).

The first-instance court sentenced the debtor to pay unpaid expenses, with interest on arrears, monetary correction and a fine of 2%. However, it dismissed the application of the 10% fine fixed at the general meeting. In an appeal, the sentence was reformed to enable the fine to be collected.

"The use of the term 'repeatedly' in the caput of article 1337 expresses repeated, renewed and repeated conduct by the condominium," noted the rapporteur, Minister Solomon. In addition, in its opinion, "civil status requires a worsening of the conduct capable of jeopardizing the coexistence with other condominium owners, even endangering their own financial solvency."

Judicial route

As to the specific case, he observed in the judgment of the court of origin that, since 2002, all payments made by the Ok Group were made by judicial process, with delays that had lasted more than two years.

For him, the duties of objective good faith were violated, "mainly on the side of cooperation and loyalty, and the judge should vehemently reject serious attitudes that jeopardize the continuity of condominium property."

In the face of the findings, Solomon concluded that the debtor's conduct complied with the legal precept of the caput of article 1,337 of the Central Bank, "because it is a clear debtor indefinite debts condominiales, able to trigger the application of the pecuniary penalty provided therein."

The Fourth Panel, by majority vote, dismissed the special appeal of the Ok Constructions and Enterprises Group.