The use of fiduciary sale as a form of security is already widely known, being especially used in real estate sale agreements, where the property is transferred to the creditor owing to the loan of the amounts required for the purchase of this asset.
According to data presented by the Brazilian Association of Real Estate Developers – Abrainc, more than 92% of real estate financing was secured by fiduciary sale in 2020[1].
As there are high figures at play, the release of credit conditioned to the posting of a robust security, as is the case of real estate, is essential for the effective return of the funds used and it is possible to maintain the consumption chain in the real estate market, since in these cases, the risk of the business, that is, the risk of contractual nonperformance, is extremely high and falls directly on the financial institutions that granted it.
For this reason, the Fiduciary Sale Act – Law 9514 of 1997 – establishes, through Articles 26 et seq., its own procedure for extrajudicial execution of debt, which consists, in general terms, in putting the debtor in default by personal service of process and consolidation of the property on behalf of the creditor in the case of non-purgation of the default within the period set forth under the agreement.
The fact is that over the years, the Fiduciary Sale Act has been constantly updated by lawmakers and interpretations of the Superior Courts.
Recently, the theme returned to the news in the country owing to the trial of Extraordinary Appeal No. 860631/SP by the Federal Supreme Court (STF) – Repetitive Theme with general repercussion No. 982 reported by Justice Luiz Fux.
Repetitive Theme No. 982 aimed to resolve the constitutionality of the extrajudicial execution procedure relative to loan agreements with fiduciary sale of property, by the Real Estate Financial System – SFI, as provided for in Law 9514/1997.
In trying the matter, STF reviewed all the economic and financial reflexes that any requirement for judicialization of the execution of loan agreements would bring both from the perspective of the financial institutions that grant credit for the purchase of properties in this modality, and from the perspective of purchasers/debtors, in view of the excess demand of the court system that such a decision would entail.
In the end, STF understood that the extrajudicial execution procedure established in the Fiduciary Sale Act is constitutional, since there is no offense to the principles of due process of law, adversary proceeding, and fair hearing (Article 5, LIV and LV, of Federal Constitution/88). The Reporting Justice Luiz Fux makes the following reflection throughout his opinion:
Despite the fact that it is an extrajudicial procedure, the executive order regarding the fiduciary sale of property takes into account procedural rules that are consistent with the constitutional provisions and the general rules of the Code of Civil Procedure, applicable to court processing involving real rights over property. In point of fact, in line with the foregoing, it should be noted that the procedure is guided by core requirements for the institution and development of the extrajudicial procedure addressed herein, such as: i) the initial filing by the creditor; ii) the official communication of the debtor by means of a service of process; and iii) compliance with rules of jurisdiction, since the application should be filed before the competent Register of Deeds.
In view of these relevant reflections, the following thesis was advanced: “The procedure under Law 9514/1997 for the extrajudicial execution of the secured fiduciary sale clause is constitutional, given its compatibility with the procedural guarantees provided for in the Federal Constitution.”
The issue around the need to comply with Law 9514/97 in situations of blatant contractual nonperformance alludes to the position recently advanced by STJ within the trial of Resp (Special Appeal) No. 2.042.232/RN.
In this trial, when reviewing a hypothesis involving the waiver of the agreement expressed by the purchaser, STJ advanced an understanding that, once the debtor’s interest in undoing the sale agreement with a fiduciary sale covenant has been demonstrated owing to the lack of financial conditions to maintain the agreement, the early breach of the agreement is substantiated, as it makes certain its future nonperformance, so that Law 9514/97 should be applied to the detriment of the Consumer Protection Code, in view of the proper execution procedure provided for in that law for situations like this.
It is clear, therefore, the existing alignment between STF and STJ in relation to the need to comply with Law 9514/97 and the extrajudicial execution procedure in cases of blatant nonperformance of sale agreements signed with a fiduciary sale security, a position that reflects the importance of the appropriate use of such security to maintain the ecosystem of the real estate market.
[1] Source: https://cnbsp.org.br/2022/10/26/valor-economico-stj-decide-sobre-financiamento-de-imoveis/ – accessed on November 20, 2023
Available at: https://br.lexlatin.com/opiniao/lei-de-alienacao-fiduciaria-tribunais-superiores-mercado-imobiliario
Autor: Mariana Siqueira Bortolo Regazzo • email: mariana.regazzo@ernestoborges.com.br
