In a recent ruling (REsp 2.180.611-DF), the Third Panel of the Superior Court of Justice established a crucial precedent aimed at protecting the assets of the co-owner or spouse who bears no liability for the debt (the non-party to the execution) in cases involving the attachment and auction of indivisible property.
What Has Changed and What You Need to Know?
The law (Code of Civil Procedure – CPC) already provides that, when indivisible property is attached for a debt of one of the owners, the co-owner (or spouse) who is not subject to the execution is entitled to receive their share based on the appraised value of the property.
The novelty of this STJ decision is the reaffirmation that this protection remains in place even when the co-owner not subject to the execution exercises the right of first refusal and successfully bids for the property at auction.
Key Point of the Decision:
In the attachment of indivisible property, the share of the co-owner not subject to the execution, who exercises the right of first refusal in the auction, must be calculated based on the appraised value of the property, and not on the final auction price.
In Practical Terms:
- Guaranteed Protection: The objective is to ensure that the assets of the co-owner who bears no debt are preserved.
- Reference Value: Your share (quota-parte) in the property will always be calculated based on the official appraised value of the real estate or property, as determined by Article 843 of the CPC.
- Right of First Refusal in the Auction: The co-owner has the right to “match the offer” and acquire the property to become the sole owner, on equal terms with third parties.
- Equality of Conditions Preserved: If the final auction price is lower than the appraised value, the share of the co-owner not subject to the execution continues to be considered at the appraised value. This prevents them from suffering financial loss when exercising their right of first refusal.
In summary, the decision protects the co-owner not subject to execution from having their share reduced by a low-value auction, ensuring they always receive the fair value (the appraised value) for their share, even if they decide to acquire the property at auction.