According to Justice Nancy Andrighi, the communication does not require special formalities, it is sufficient that it is made in writing and that the intention of the lessee to terminate the agreement reaches the lessor or someone authorized to receive it on his behalf.
The Third Panel of the Superior Court of Justice (STJ), in the trial of special appeal No. 2.089.739- MG (2023/0275973-6), unanimously decided that the notice of the tenant’s intention to terminate the lease can be communicated by email. According to the collective, the communication does not require special formalities, being sufficient that it is made in writing and that it reaches the lessor or someone authorized to receive it on his behalf.
In the case at hand, an execution was filed owing to the alleged non-payment of rents. In her motion to stay execution, the lessee claimed to have sent an email to the lessor’s lawyer previously informing her intention to terminate the contract, arguing that the amounts charged were not due.
The lower court recognized that part of the charge was excessive. The state appellate court upheld the decision, as it understood that the lessee was able to return the keys and prove her attempt to terminate the contract.
In the appeal addressed to the Federal Supreme Court, the lessor argued that simply sending an email to his lawyer would not meet the legal requirement of prior written notice; therefore, as the legal requirement for termination was not met, the lessee would be required to pay the rents until the actual delivery of the keys.
Confirming the decision of the state court, Justice Nancy Andrighi, rapporteur of the case in the Superior Court of Justice (STJ), explained that Law 8245/91 (Lease Law), in its Article 6, establishes that the notice of termination in lease agreements for an indefinite period should be made in writing and at least thirty days in advance. In the absence of the notice, the lessor may charge the amount relating to one month of rent and charges in force at the time of termination, as provided in Article 6, Sole Paragraph, of the said statute.
The said provision (Article 6) deals with the so-called unilateral termination, since, in view of the principle of irrelevance of the reasons, which prevails as a rule in the field of the domestic Private Law, the motivation for the practice of the act is not mandatory by law.
The justice considered that "the central point of the present controversy is to determine the form that said notice should take for the termination to produce its typical effects." “As a matter of fact, Article 6 of the Lease Law requires, as already stated, that the termination be established by ‘written notice to the lessor,’ so that failure to comply with the prescribed form will lead to the non-effectiveness of the termination, preventing it from operating its own effects," said Nancy Andrighi.
The justice pointed out that the law does not specify the means by which the notice must be given. Based on the doctrine, she clarified that the rule requires only a written notice, and it is sufficient that the lessee’s intention to terminate the lease for an indefinite period reaches the lessor.
The legislation provides that the termination is made through “written notice,” this is the required form. On this point, Nancy pointed out that “as Alcides Tomasetti Jr. points out, ‘advice is less than notification,’ indicating the less rigorous nature of the legal act.”
However, even with a less rigid approach, it is important to highlight that, in view of the clear legal requirement regarding the form, although mitigated, the lessee’s good faith or their unsuccessful attempts to notify the lessor do not replace the fulfillment of legal formalities for the termination to take effect as established by law.
After the notice mentioned in Article 6 of the Lease Law, with a period of thirty days, it is incumbent upon the lessee to return possession of the property to the lessor, by returning the keys. In the case of refusal by the lessor, the lessee may make the consignment in court of the keys.
Accordingly, notice to the lessor of termination has reduced formality, requiring only that it be in writing and that the lessee’s intention to terminate the lease without a fixed term reaches the lessor or someone on his behalf.
The 3rd Panel of the Superior Court of Justice (STJ), in accordance with the appellate decision under appeal, rendered by the state court, concluded that the exchange of emails was sufficient for the lessor to be aware of the lessee’s intention to terminate the contract with an indefinite term and terminate it.
In view of the arguments brought, it is possible to ascertain that the recent decision contemplated the evolution of the means of communication, allowing the improvement in the forms of interaction between the parties involved in a legal transaction. Therefore, it is crucial to emphasize the importance of adopting measures to protect the rights of both the lessor and the lessee, ensuring that communications are carried out through reliable channels, capable of serving as evidence in any legal conflict.
Special Appeal No. 2.089.739
Autor: Paulo Henrique das Flores Porto • email: paulo.porto@ernestoborges.com.br
