The Third Panel of the Superior Court of Justice (STJ) reaffirmed the lawfulness of cumulating contractual guarantees and the statutory lien in lease agreements. Sitting unanimously, the panel dismissed Special Appeal No. 2,233,511 – AL, holding that the existence of a surety does not deprive the lessor of the right to retain the tenant’s assets to secure payment of overdue rent.
Understanding the case
A shopping center in Maceió seized movable assets (products and furnishings) belonging to a defaulting tenant and subsequently sought judicial confirmation of the statutory lien. The tenant’s defense argued that this measure violated Article 37 of the Tenancy Law (Law 8,245/91), which prohibits requiring more than one type of guarantee in the same lease agreement under penalty of nullity and criminal misdemeanor.
Grounds of the decision
The reporting Justice, Minister Ricardo Villas Bôas Cueva, clarified that the two legal mechanisms have different natures and purposes and are therefore fully compatible:
- Contractual guarantees (Law 8,245/91): These are limitations on private autonomy at the time the lease is executed, intended to prevent the landlord from abusively requiring the cumulative provision of a security deposit, surety, or surety insurance.
- Statutory lien (Article 1,467, II, Civil Code): Statutory lien (Article 1,467, II, Civil Code): It is a real right that arises directly from statute, irrespective of the parties’ intent. It constitutes a form of private self-help admitted when there is a risk that delay will jeopardize the satisfaction of the creditor’s claim.
Conclusion
The court held that the prohibition on multiple guarantees applies only to conventional guarantees (those agreed upon by the parties) and does not curtail rights established by statute. Therefore, even if the lease agreement provides for guarantors, the landlord may take possession of the assets furnishing the premises to ensure the effectiveness of the lease credit in the event of default.