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The Third Panel of the Superior Court of Justice (STJ) reaffirmed its understanding that the surviving spouse's or partner's real right to housing, while it persists, prevents the termination of the condominium and the judicial sale of the property.
The reporting judge, Justice Nancy Andrighi, emphasized that the real right to housing is provided for in Article 1,831 of the Civil Code (CC) and in Article 7, sole paragraph, of Law 9,278/1996, with the STJ ruling that registration in this situation with the appropriate notary's office is not necessary.
The justice explained that this lifelong and highly personal right, granted to the surviving spouse or partner, guarantees their continued ownership of the property where they lived with their family after widowhood. As she noted, the STJ has already established that this right of the spouse persists even if there are only sole descendants of the deceased.
According to Nancy Andrighi, the real right to housing is a way to fulfill the constitutional right to housing, in addition to meeting humanitarian and social reasons. Citing specialized doctrine on the subject, she stated that the trauma caused by the death of a spouse should not be aggravated by another trauma, that of being uprooted from the living space.
The rapporteur emphasized that the Superior Court of Justice (STJ) has precedents stating that, as long as the real right to housing persists, the sale of joint property is not possible, nor is the demand for remuneration for its use, according to Article 1,414 of the Civil Code.
The minister emphasized that the inability of individuals to freely dispose of their assets is justified by the relevant legal and constitutional protection afforded to the family. Therefore, for her, in a balance of values, the mitigation of property rights is a valid way to ensure maximum effectiveness of the prevailing interest, namely, the protection of the family group.
For more information, see the case: Resp 2.189.529/SP.
Source: STJ News.
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