Concurrent liability for condominium debts

The Superior Court of Justice (STJ) and the affirmation of the propter rem nature of the obligation.

The Second Section of the Superior Court of Justice (STJ), in a recent judgment reported by Minister Isabel Gallotti, reiterated a fundamental understanding for the dynamics of condominium relations: in cases where the promise of sale contract was not registered in the registry office, both the seller and the buyer of the property can be held responsible for the payment of condominium fees due after the buyer takes possession.

This decision reopens the debate on the application of Theme 886 of repetitive appeals and on the propter rem nature of condominium obligations, requiring a technical, but accessible, analysis, given the practical relevance of the controversy for the real estate market and condominium administration.

The Case: Promise of Sale, Possession and Default.

The specific case involved a public housing company that, in 1985, promised to sell a property to a couple, who took possession of the property. Between 1987 and 1996, the property generated unpaid condominium debts. The condominium association filed a collection action against the buyers, obtaining a favorable ruling.

However, since the debtors’ assets were insufficient to satisfy the execution, the condominium association requested the seizure of the property, still registered in the company’s name. The company, in turn, filed third-party objections, alleging lack of standing to be held liable for the debt, given that it no longer held possession of the property. The Superior Court of Justice (STJ), however, denied the company’s appeal, upholding the seizure of the property.

Topic 886: Literal or Finalistic Interpretation?

The company’s defense was based on one of the theses established in Topic 886, which states that, if the condominium association is aware of the buyer’s taking possession, the responsibility of the seller is waived. However, the rapporteur considered that such an understanding cannot be applied automatically, under penalty of distorting the nature of the condominium obligation.

According to Gallotti, the repetitive ruling did not sufficiently address the issue from the perspective of the propter rem obligation , which is independent of the contractual relationship between private parties and arises from the very ownership of the real right. Thus, a promise of sale without registration does not exempt the formal owner from the condominium obligation.

Propter Rem Obligation and the Protection of Collective Interest

The minister was categorical in stating that the condominium, as a creditor of a propter rem obligation , cannot be subject to the private agreement between buyer and seller. This is a debt that is linked to the property, and not to the specific person who occupies it.

This perspective preserves the social function of the condominium, ensuring that the charges arising from the property are met, even in the face of omissions or formal ineffectiveness of private contracts. Allowing the condominium to foreclose on its own property, regardless of actual occupancy, is a measure that ensures payment and avoids overburdening the other condominium owners.

The Theory of Dual Obligation: Between Debt and Responsibility

The judgment also recalls the doctrinal contribution of Minister Paulo de Tarso Sanseverino (REsp No. 1,442,840/PR), who proposed the application of the theory of dual obligation: the buyer, in possession of the property, is the direct debtor of the debt, while the registered owner remains patrimonially responsible, precisely because they hold the formal title to the property.

Thus, responsibility is shared: the buyer is responsible for the use and enjoyment of the property, while the seller cannot be exempt from foreclosure until they formally transfer ownership through registration. The separation between debt and liability, in this context, allows for a more balanced solution, compatible with the legal and material reality of the condominium.

Prevalence of Legal Certainty and Condominium Solidarity

The decision of the Second Section of the Superior Court of Justice (STJ) reaffirms the prevalence of collective interest over informal private agreements. By recognizing the concurrent passive legitimacy between buyer and seller, the Court safeguards the propter rem nature of the obligation and guarantees the effectiveness of the execution of the condominium debt.

The position adopted is consistent with the principles governing property and condominium living, especially the protection of the condominium community against the risk of default. In short, it is not just a question of who owes, but of who is liable – and, in this case, the property and its registered owner cannot be immune to the legal obligation that falls upon them.

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Cases: Special Appeals Nos. 1,910,280 and 1,442,840

Information: STJ