Do débito condominial de natureza propter rem: a (im)penhorabilidade do bem imóvel gravado em alienação fiduciária

Abstract

This study aims to investigate the possibility of a property encumbered by fiduciary alienation being subject to attachment due to outstanding condominium debts. The general objective of the research is to understand the legal principles related to exemptions from attachment, the propter rem nature of condominium debt, and the fiduciary alienation of real estate. The specific objective, in turn, consists of analyzing the state of the art concerning the understanding of the Superior Court of Justice on this subject. The social relevance of the study arises from the practical implications of the (im)possibility of attaching fiduciary-alienated property, which may, on the one hand, affect the financial sustainability of condominiums and, on the other, impact the cost of mortgage credit. The methodology employed consisted of a legislative and doctrinal review combined with a jurisprudential analysis of Special Appeals Nos. 2.036.289/RS and 2.059.278/SC. Subsequently, the study examined the creditor condominium’s ability to initiate the attachment of the fiduciary debtor’s rights arising from the fiduciary alienation contract. Finally, an extrajudicial proposal was formulated to resolve the controversy.