The family home may retain its protection against attachment even where the property has a high value.
An important ruling on the family home
In AREsp 2791033/PR, the Superior Tribunal de Justiça (STJ) reaffirmed that the market value of the family home does not, in itself, remove its immunity from attachment.
Accordingly, a high price does not automatically eliminate the protection where the property remains intended for family housing; in practice, this position prevents the economic value of the property from becoming the sole criterion for allowing attachment.
The judgment further stresses that Article 3 of Law No. 8,009/90 (the Brazilian statute on the immunity of the family home from attachment) must be construed restrictively.
Creditors must therefore pay attention to the specific facts of each case and take into account the particular features of the legal transaction in light of any security provided by the debtor in the event of contractual default.
The value of the assets remains relevant to the procedural discussion, but it does not on its own resolve the dispute where the debtor’s assets are concentrated in his or her sole property.
High-value family home: who may be affected
This position is of interest to individuals involved in debt collection, enforcement proceedings and the performance of obligations. It may also affect partners, business owners and directors litigating over the attachment of residential property.
In addition, the matter concerns families residing in high-value property. The protection of the family home does not depend, in isolation, on whether the property is of a modest or high standard.
Implications of the case
In light of this important precedent, it falls to the creditor to identify specific assets of the debtor as security, other than his or her residential property.
Moreover, where the property does in fact serve as the family’s residence, proof of address, utility bills and tax returns may assist in structuring this analysis, so as to demonstrate the residential purpose.
It is also advisable to separate information concerning ownership, occupancy and use of the property. These elements make it possible to assess whether the dispute does in fact involve the protection of the family home.
Creditors are advised to exercise caution before basing a claim solely on the high value of the asset. For debtors, this position reinforces the importance of presenting consistent evidence as to the property’s residential use.
The discussion concerning the family home must therefore combine the asset position with the reality of the parties’ housing situation. The debate is not confined to a market valuation.