Clipping of news on Brazilian Culture, Law and Citizenship
02/08/2012
This article was translated by an automatic translation system, and was therefore not reviewed by people.
The property management company is not a legitimate party to judge, in his own name, credit enforcement action regarding the lease. It is only representative of the owner and not a substitute procedural. This was the understanding of the Third Chamber of the Superior Court of Justice (STJ) in the judgment of special appeal by the guarantor of a tenant.
Originally, a property management company filed enforcement action against the delinquent rent guarantor of the lessee. Subsequently, the cosigner reconsideration enforcement, alleging that the company would not have standing to execute the lease in his own name.
The judge recognized the validity of the bond and excluded values of implementation enhancements such as water, electricity and property tax, keeping only the amount of rent due.
The surety appealed, but the appellate court upheld the sentence, stating that the real estate company, "invested with full powers of administration of the leased property as well as special powers to appoint a lawyer and enter into judgment," has standing to judge execution action as far as the owner.
Rights of others
The guarantor, now deceased, was replaced by the estate, which appealed to the Supreme Court. In the special feature claimed violation of Article 6 of the Code of Civil Procedure (CPC), according to which "no one can claim, in his own name rights of others, unless authorized by law."
In his view, the property management company is not a legitimate party to plead, in his own name, the rents due.
The location of urban real estate is regulated by Law 8.245/91. Minister Nancy Andrighi, special rapporteur of the appeal, noted that most of the leases of property are established with the participation of an agent (realtor or real estate) that acts to a greater or lesser degree, to converge the will of the parties on issues such as price, mode and place of payment and delivery of keys and inspection of the property.
By analyzing the process, the rapporteur concluded that the real estate company was formed by the lessor for the acts of administration in general, with powers to even judge the actions of interest to the property owner.
"At this point it is worth mentioning that there is no doubt therefore that the estate by virtue of the mandate given by the landlord, could bring an action for recovery or enforcement of delinquent rents and charges against the tenant or guarantor on behalf of landlord, "he said.
Legitimacy
Nevertheless, regarding the possibility of judging the real estate on its behalf, enforcement action for rents, she explained that the legitimacy of those who own common stock is the right material, in this case, the property owner.
"However, the law can legitimize extraordinarily other subjects, called procedural substitutes," said Andrighi. In his view, the replacement procedure can only occur under specifically defined by law, not being allowed to operate through "voluntary contractual arrangement made between replaced and replacement."
"The participation of real estate, so it is not wide enough to put it in place of his own landlord," he said. The legitimacy of the property management company - which was recognized in the ordinary - should be rejected, "because it lacks a prerequisite for the legitimate exercise of that right," namely, the possibility of being substituted in the process and not just representative of the owner .
The minister accepted the claim of violation of Article 6 of the CPC, which justified the granting of the special feature. The Third Panel set aside the judgment of the state court and dismissed the case without merit resolution, recognizing the illegitimacy of the active real estate.
Share this news:
Source: STJ
Our news are taken in full of our partner sites. For this reason, we can not change the content of these up in case of typing errors.
This article was translated by an automatic translation system, and was therefore not reviewed by people.