Property buyer is not liable for bankruptcy fees

The loss fees resulting from conviction in an action to collect condominium fees are not ambulatory in nature ( propter rem ), that is, the obligation to pay them is not transmitted to the buyer with ownership of the property.




The decision was made by the 3rd Panel of the Superior Court of Justice in granting a company's appeal to cancel the electronic judicial sale of property purchased by it, whose attachment had been determined in the course of the condominium fees collection action filed against the former owner. .


According to the process, the appellant B2B Lead paid off the condominium debts owed and petitioned, during the enforcement of the collection action sentence, for the cancellation of the electronic auction. In the first instance and in the Court of Justice of São Paulo, the request was rejected, with the understanding that the loss sums should also be paid, as they would follow the main obligation, being linked to the claim for collection.


To the STJ, the appellant argued that the legal fees are autonomous in nature and cannot be confused with the obligation to pay the condominium. He stated that the TJ-SP ruling was contradictory in recognizing that the loss payment could not be demanded from the buyer of the property – who was not part of the collection action – and making the suspension of the seizure conditional on the payment of fees.


The rapporteur of the appeal at the STJ, minister Nancy Andrighi, explained that ambulatory obligations "are those that are linked to the ownership of a real right, regardless of the holder's expression of will, and, therefore, are transmitted to all those who succeed him in their position; they are therefore assumed 'because of the thing' ( propter rem )".


According to her, the understanding extracted from article 1,345 of the Civil Code is that the obligations of the condominium owners towards the condominium are qualified as ambulatory, so that, “the respective benefits arising from the mere ownership of the real right over property, will affect the thing and will accompany it in all its subjective mutations”.





When citing the doctrine of Orlando Gomes, the minister highlighted that the obligation to pay debts in relation to the condominium is transmitted automatically, even if this is not the intention of the transferor and even if the acquirer does not want to assume it, constituting a “bond legal system by which a person, although replaceable, is bound to fulfill a service in the interests of another”.


In her vote, the rapporteur highlighted that the meaning of this rule is to make the interest of the community prevail, allowing the condominium to receive, even if there is a transfer of ownership of the real right over the property, the indispensable and unpostponable expenses for the maintenance of the thing common.