The Superior Court of Justice (STJ) has ruled that a family home mortgaged on it can only be seized if the debt benefited the family unit.

The 2nd Section of the Superior Court of Justice (STJ), when judging THEME 1.261, defined that the exception to the unseizability of family property only applies when it is proven that the debt benefited the family entity.

As a rule, family property is protected by law (Federal Law No. 8.009/90) and cannot be seized, but there is an exception when it is voluntarily given as collateral .

The problem raised by the Reporting Justice Antonio Carlos Ferreira when the topic was addressed was the lack of consensus on what this exceptional situation would be that would result in the validity of the seizure of the property by the creditor.

In this sense, it was defined that the exception to the unseizability of family property voluntarily given as mortgage collateral by the company’s partners only applies when it is proven that the debt benefited the family entity .

And the burden of proof may fall on the debtor or the creditor , depending on the situation, namely:

CREDITOR : if the asset given as collateral belongs to one of the company’s partners, it will be up to the creditor to demonstrate that the debt was used for the benefit of the family;

DEBTOR : if, on the other hand, the only partners of the company are also the only owners of the property, it will be up to them to demonstrate that the debt did not benefit their family.