Aline Omena Gomes de Barros
The purchase of a property that is under a lease agreement may require legal action by the new owner to govern direct possession of the property.
Despite the recurrent use of an action to take possession to guarantee the purchaser's rights, the Tenancy Law (Law 8,245/91) expressly provides for the use of eviction proceedings in the event of the existence of a prior lease agreement.
It is established in the head paragraph of article 5 of the law that, in lease cases, eviction is the appropriate action to recover the property, whatever the reason for the termination of contract.
Article 8 of the same law, in turn, provides that, in the event of sale during the lease, the purchaser may terminate the contract, with the legally prescribed period for vacating.
The termination must be filed within 90 days of registration of the sale or commitment. If it is not done by this deadline, it will be assumed that there is an agreement to continue the lease.
If done correctly, respecting the deadlines and the appropriate form, the termination does not need specific grounds. It is the so-called empty termination. In other words, the purchaser will have no duty to respect the lease agreement entered into, whether or not for residential purposes, because he was not a party to it. He can, therefore, terminate the contract, giving a period of 90 days to vacate, without any justification.
There is, however, an exception: when the lease agreement is for a fixed term and contains a validity clause in the event of sale and is registered in the property's records.
These limits protect the tenant and transfer the lessor’s obligations to the purchaser, and also give the purchaser standing to bring the action.
The matter was recently decided by the Third Panel of the Superior Court of Appeals, in the case of Special Appeal 1.864.878/AM.
Reporting judge in the case, Justice Ricardo Villas Bôas Cueva emphasized that, "if there is no validity clause or registration, the new purchaser is not obliged to abide by the contract, and may freely exercise his right to terminate it, but, in order to take direct possession of the property, he must follow the appropriate procedural pathway, using an eviction proceeding.
A similar position has been taken by the STJ in other judgments: Special Appeal 1.590.765/RN and Special Appeal 265254/SP.
Considering that the contract's validity is a relevant point in the analysis of the choice for eviction, the form and term of the agreement must also be observed.
In residential leases entered into in writing for a term equal to or longer than 30 months, the termination of the contract will occur at the end of the term stipulated, regardless of notice or warning.
At the end of the agreed-upon term, if the tenant continues to be in possession of the leased property for more than 30 days without opposition from the lessor, the lease will be presumed to have been extended for an undetermined term and the other terms and conditions of the contract will be maintained. In the event of an extension, however, the lessor may terminate the contract at any time, giving him 30 days to vacate.
In the case of residential leases that were agreed upon verbally or in writing and have a term of less than 30 months, when the established term has ended, the lease is automatically extended for an indefinite period. The property, in this case, can only be repossessed in the case provided for in article 47 of the Tenancy Law.
Once the eviction action is granted, the judge will order the issuance of an eviction warrant, which will contain a 30-day term for voluntary vacating of the property, except if more than four months have elapsed between service of process and the trial ruling. In this case, the deadline will be 15 days.
