26/04/2013
Estate which waived requirements of the lessee must pay rent to the landlord Autor: STJ
The Fourth Chamber of the Superior Court of Justice (STJ) upheld the decision that sentenced an estate to pay debts left by the tenant and its guarantor, why not take proper care in the analysis of registers and even waived contractual requirements relating to income and wealth.
In case dismissed, entered into an agreement with the landlord for the real estate leasing and management of your property. The Administrator, in turn, approved the registration of the tenant and the guarantor based, according to the sentence, in "bonds of friendship" without that income derived by them reach the minimum amount required in the contract and they had no goods to ensure eventual execution.
Given the default of rent, and the discovery of the lack of assets and the guarantor of the tenant to cover the debts, the property owner filed a lawsuit claiming compensation for damages against the estate. According to him, the registrations have been approved so "desidiosa".
The estate said it acted diligently in both the approval of records as the course of the lease, and promoted the judicial recovery of debt. Said he could not be held responsible for the default of the lessee, since it is not bound severally to comply with the lease, whose values should be made, she said, only by the debtor and his surety.
Alleged illegitimacy passive in the cause and said the intention of the property owner to be indemnified was already prescribed.
Execution frustrated
The Court of Rio Grande do Norte (TJRN) recognized the existence of a failure to approve the registration of the tenant and the guarantor, as the income earned by them did not reach the minimum level required by contract (monthly income more than three times the amount of rent ), who was frustrated with the execution of rents and debts related to coordinates condominium and unpaid taxes.
The TJRN also took into account the completion of the sentence to the effect that the approval of the registration of the tenant and its guarantor would have occurred because of friendship between them and the director of real estate.
Rapporteur for the resource in the STJ, Minister Luis Felipe Solomon, these arguments reinforce the guilt of the estate "negligence" in the contract.
Article 667 of the Civil Code (CC) requires the trustee (in this case, real estate) to apply "all your diligence in carrying out the mandate and to indemnify any loss caused by your fault or to whom to delegate, without authorization, powers that would act personally. "
According to the rapporteur, "it is not for real estate that acted diligently responsibility for payment of rent, condominium quotas or taxes unpaid by the tenant, except in case of contractual provision to that effect."
However, "sets up the responsibility of the property management company for the losses suffered by the lessor when she does not comply with the obligations arising from the contractual relationship," analyzed the rapporteur.
Legitimacy and prescription
To the ministers of the Fourth Class, property, author of the special, is standing to appear on the defendant's action because the request in court not only relates to the payment of rent, but the company's civil liability for the breach of contract.
Regarding the prescription alleged by the estate, the Panel stated that the intention of the property owner was born with the knowledge of defect in service provision, ie, with the knowledge of "negligence" regarding the approval and registration of the tenant's guarantor.
This incident occurred when the executive proceedings, filed in June 2003, was frustrated. As the demand was proposed in August 2005, before the expiration of three years provided for in Article 206, paragraph 3, section V, the CC, the ministers understood not to have occurred prescription.
