Glidson Oliveira: Unfair Refusal to Tradition Inauguration

In the context of condominiums, the Civil Code states, in Article 1,334, Clause 1, that members of the condominium are responsible for incurring ordinary and extraordinary expenses for the maintenance and preservation of the thing, as an obligation Propter remAny building expenses associated with the thing.

This is why 1) the owner (the seller) remains liable to pay the condominium charges, even if the buyer has taken possession of the property (AgInt no REsp 1565327, Minister Raúl Araujo’s decision), 2) the receipt of the obligation to pay the condominium charges for the new owners of the property, without prejudice to By any descending order (AgInt in AREsp 1.015.212, Adjudicator Maria Isabel Gallotti), 3) In the case of an auction in which it appears that there are liens on the property, the buyer is responsible for the condominium fee prior to the auction (AgInt no AREsp 1434491, Adjudicated by Secretary Maria Isabel Gallotti) , and 4) a property owner can get their property mortgaged in the midst of the sentence compliance phase, even if they have not participated in the knowledge phase (AgInt in REsp 1851742, Decision Minister Nancy Andregue).

The responsibility to pay off the condominium obligations as a rule rests with the owner. Through the extension adopted by the Civil Code, in its Article 1.334, paragraph 2, the said liability can also fall on the promising buyer and on the person to whom the rights in relation to the property are transferred.

In the event of the conclusion of a contract for the purchase and sale of property, the obligation to pay the condominium expenses may fall on both the seller and the buyer, depending on the circumstances referring to the exercise of possession and knowledge of the condominium of the contract, as the High Court of Justice ruled for a long time (EREsp 138,389, decision Minister Sálvio de Figueiredo Teixeira).

In iterative topic No. 886, the second section of STJ, the decision Minister Luis Filipe Salumao, created a thesis, in April 2015, that what determines the responsibility for the payment of condominium obligations is not the registration of the purchase and sale contract, but the material legal relationship with the property, The responsibility for these expenses may lie with the owner or the buyer. If it is established that the buyer acquires the property and that the condominium has a clear knowledge of the purchase and sale agreement, the negative legitimacy of the seller to reimburse for the condominium expenses relating to the period in which the purchaser exercised the removal.

Thus, based on the 886 iterative theme, there are guidelines in the sense that the seller cannot be held liable for the debts of the condominium post- alienation, concurrent with the possession exercised by the buyer, because when alienating the property, he intends to repudiate the real right over the property (REsp 1440780, Decision Minister Marco Aurelio Belize).

In order to make the above-mentioned thesis fixed in the repetitive topic No. 886 compatible with the legal nature Propter remSyrians for Truth and Justice decided, in the same year of 2015, shortly after the aforementioned jurisprudential precedent, that the joint debt, in the case of a sale and purchase agreement, should be attributed to the purchaser who was issued in possession, without prejudice to liability. to the owner (seller), both of which are legitimate to appear in the negative pole of the demand for collection, i.e. to make the content of the thesis established in the recurring topic 886 relatively, it has come to be understood that in the case of the exercise of possession by the buyer can sue, in negative annexation, each of the seller and Jupiter (REsp 1,442,840, Minister Paolo di Tarso Sanseverino).

That is, the thesis in the recurring topic 886 was reconsidered in the same 2015, so that the jurisprudence developed in the sense that once it was proven that the buyer imitated the possession of the property and it was proven that the buildings were aware of the transaction, there is a simultaneous negative legitimacy for both contractors to respond to the building expenses related to the period in which They exercised the property (AgInt in REsp 1219742, rapporteur Maria Isabel Gallotti).

From the moment he receives, say, the keys to the property, the buyer becomes responsible for paying the condominium expenses, given that this is the moment he owns the property. Thus, the tenure is the de facto element that generates for the property buyer the obligation to pay the condominium fee, since he is entitled to enjoy the entire organizational structure of the condominium (AgInt in REsp 1,881,812, Decision of Minister Mora Ribeiro).

In an important ruling issued on March 29, 2022, the Third Committee of Syrians for Truth and Justice decided, in REsp 1,847,737, that in the event of a wrongful refusal to receive the keys to the property, the responsibility to pay the housing unit fees rests with the buyer. In the opinion of Minister Ricardo Villas Boas Cueva, the wrongful resistance to possession (and receipt of the keys) constitutes such a delay on the part of the buyer, that there is no legal basis to hold the seller liable for the condominium charges, if the obligation to place it at the disposal of the buyer is that the keys have been duly satisfied. That is, the buyer must pay a condominium fee from the receipt of the keys or, in the case of wrongful refusal, from the moment the keys were at his disposal.

For this reason, following the decision in REsp 1,847,737, in the event of an unfair refusal by the purchaser to receive the keys to the property, it is legal for the seller to promote the consignment in payment of the keys, while still providing the condominium knowledge of such initiative. , at which point the responsibility to pay for the condominium expenses will be with the buyer, and is no longer the responsibility of the seller.