The doctrine of the homestead right represents, since its constitution, one of the important instruments of legalization of the social needs created by the Brazilian politic economical context in order to ensure protection to constitutional rights that are under risk.
Accordingly, the Law n. 8.009/90 (“Homestead right law”) emerged on a period of many uncertainties of the Brazilian economy when our currency was very depreciated due to the high inflation, arising the need of protection of the assets and rights of the citizens in order to preserve, among other basic rights, the human dignity.
With the promulgation of the Lease Law in the following year (Law n. 8.245/1991), it was noticed that the protection did not involve the homestead right of the guarantor, what demonstrated to be a violation to the equity principle in regard to the lessee that was in the same situation of debtor, but remained protected by the benefit.
In this context, the Courts began to fight against the injustices over the guarantor turning to render favorable decisions to the right of the guarantor to execute the lessee’s homestead right as a right of reimbursement for the paid rents.
Such court trend contributed for the further draft of the Senate Bill of Law n. 408 of 2008, that is currently in the Constitution, Justice and Citizenship Commission of the Senate ready to be voted, which intends to modify not only the Homestead Right Law but also the Lease Law in order to extend the protection of the unseizability of the homestead right to the real estate of the guarantor.
The mentioned project was built to reaffirm and increase the supportive and protective basis of our legal and political system to the extent that it ensures to the guarantor the right to have its main assets protected in order to ensure the necessary safety and equity before the lessee.
The former idea of “basic necessities of life” named by the Romans of modicum aliquid ne egeat was also incorporated by this project in order to provide to the guarantor, that assumes the role of debtor in case of default of the lessee, the right for the minimum necessary for its survival, which means the real estate where he lives.
However, notwithstanding the significant progress in the process of mitigation of the differences and gaps of our legal system, it is understood that this measure will reduce the use of this real estate guarantee as a form of guarantee in the lease contracts, mainly in those signed between individuals, as it generally happens in residential lease agreements, since the measure will reduce the safety of the lessor.
In this aspect, such legal innovation will probably restrict the option for this lease guarantee, since many will give up from it when they do not find a guarantor with more than one property, which will make them choose by one of the other guarantees foreseen in the article 37 of the Lease Law such as pledge, insurance guarantee or fiduciary assignment of investment fund shares.
Such discussion about the applicability of the homestead right to the guarantor is a special feature of the Brazilian legal system since in countries such as Germany, France, Switzerland, among others, the homestead doctrine is not used anymore being offered to the debtor other forms of protection of his property.
The acknowledgement about the applicability and operation of this doctrine as well as its innovations and changes are mainly relevant for foreigners in Brazil, whether investors or employee, since the first step for the beginning of the business activities is the lease of a industrial shed, an office or a residence for directors.
Therefore, in the legal aspect, it was a good initiative of the legislator to file such bill, since it has shown the growth of the Brazilian society, court system and the legislative in regard to the effective protection of the social needs and interests of a Legal Democratic State. However, in the economic aspect, such measure may have a negative impact in the real estate market as it is considered to be a restriction to the use of the real estate guarantee by turning this lease agreement a burden to the lessor, what may cause a slowdown of this kind of business in the real estate framework.
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Ana Lucia Villela was an associate at Pacheco Neto Sanden Teisseire Law Firm.