A ruling by the Third Panel shows that subdivision fees may be charged to a non-member who assumed the debt under a contract.
The Third Panel of the Superior Tribunal de Justiça (STJ, Brazil’s Superior Court of Justice) held that subdivision fees may be charged to an owner who is not a member of the association, provided that she expressly assumed the obligation when she received the plot by way of an assignment of rights. In practice, Theme 882 of the STJ (a binding precedent issued under the repetitive appeals system) no longer protects those who agreed in writing to pay.
Why Theme 882 did not apply in this case
Theme 882 of the STJ, in line with Theme 492 of the general repercussion docket of the STF (Supremo Tribunal Federal, Brazil’s Federal Supreme Court), bars the compulsory charging of those who have not joined the association. That understanding remains in force. The Panel, however, distinguished the situations: here, the charge does not arise from statute or from the association’s bylaws, but rather from the owner’s own will.
The reporting judge, Justice Ricardo Vilas Bôas Cueva, emphasised that a voluntary declaration of intent is an autonomous source of obligation. For that reason, membership of the entity and the regularisation of the subdivision ceased to be decisive.
What the assignment of rights clause provided
The case concerns a plot in the Federal District. The residents’ association was claiming approximately BRL 27,800.00, relating to the period between May 2015 and April 2020. The first instance judgment had dismissed the claim, but the local court reversed that decision, and the STJ upheld this outcome.
Under the 2002 assignment instrument, the assignee took responsibility for debts, fees and charges relating to the property, including existing condominium fees. The court therefore held that she had accepted the funding of the common areas.
What purchasers and associations should check
Anyone who has acquired a plot by assignment should re-read the contract carefully. A clear clause on fees and charges may support the charge, even in the absence of membership. Likewise, the association must locate the document in which the purchaser assumed the debt.
In our view, the wording of the clause will be the most debated point in future cases. The source consulted does not clarify whether generic wording suffices, nor does it address limitation periods or the modulation of effects. For this reason, the full text of the judgment should be read before any use in a pleading or legal opinion.
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