When property owners decide to file an eviction action against tenants, all means of repossessing the property have generally been exhausted. This indicates the urgency that lessors have in obtaining a preliminary court order that the property be returned.
However, this judicial relief may sometimes take longer than expected, frustrating property owners' expectations and possibly exposing them to irreparable damage, especially where the lease does not have one of the forms of guarantee (security deposit, surety, surety insurance, for example) set forth in Article 37 of the Lease Law (Law No. 8,245/91).
In view of this situation, the Lease Law, amended mainly by Laws 12,112/09 and 12,744/12, now allows property owners to obtain injunctions for eviction of properties within 15 days, regardless of the tenant's response in the proceeding and provided that a deposit equivalent to three months' rent is made. This prerogative applies to eviction actions that are based solely on non-payment of lease payments and ancillary fees, in lease agreements without any guarantees, pursuant to Article 59, item IX, of the Lease Law.
Although, at first, the case law did not take an incisive position as to the applicability of this legal provision, the Judiciary seemed to have understood the spirit of innovation intended by the Lease Law, aiming at noticeable evolution of the topic over time.
Upon reviewing the case law of the São Paulo State Court of Appeals (TJ-SP), for example, one notes that many judicial decisions use this legal provision as grounds for granting an injunction sought by the lessor and order eviction from the property by lessee within 15 days.[1] The Rio de Janeiro State Court of Appeals (TJ-RJ) has been following the same understanding.[2]
In only one of several judgments on the matter in recent years, the TJ-SP acknowledged that the requirements set forth in Article 59, item IX, of the Lease Law were met, but upheld the lower court’s decision that had dismissed the injunction for eviction in 15 days, arguing that “given the specific situation, the granting of the injunction for eviction would be premature, without enabling the hearing/defense of the opposing party” (Interlocutory Appeal No. 2078843-81.2019.8.26.0000, 32nd Chamber of Private Law, decided on April 25, 2019).
That is, the prevailing position in the case law is that, given the authorizing legal requirements, the injunction provided for in Article 59, item IX, of the Lease Law must be granted and the property must be vacated by the lessee within 15 days. In other words, the case law has evolved over time to reflect the change in the Lease Law and to ensure its application and the effectiveness of its provisions. In this respect, it provides less protection to the tenants and is more directed to addressing the rights and interests of lessors harmed by default in lease payments that do not have the provision of guarantees in their favor.
Thus, it is possible to state that the advance in the case law regarding effective application of the provisions of Article 59, item IX, of the Lease Law is positive for lessors and generates a greater supply of properties for lease, resulting in an impact on average market prices. Indirectly, therefore, it also benefits tenants, as property owners are more secure in renting them out to those who are unable to provide a guarantee at the time of the lease agreement, or in maintaining the deal already entered into if the guarantee comes to be terminated during the term of the contract.
[1] TJ-SP: Interlocutory Appeal No. 2273636-54.2018.8.26.0000, 25th Chamber of Private Law, decided on May 28, 2019; Interlocutory Appeal No. 2064553-61.2019.8.26.0000, 32nd Chamber of Private Law, decided on May 10, 2019; Interlocutory Appeal No. 2053445-35.2019.8.26.0000, 31st Chamber of Private Law, decided on July 25, 2017; and Interlocutory Appeal No. 2267446-75.2018.8.26.0000, 32nd Chamber of Private Law, decided on April 11, 2013.
[2] TJ-RJ, Interlocutory Appeal No. 0026990-62.2019.8.19.0000, 22nd Civil Chamber, decided on September 10, 2019; Interlocutory Appeal No. 0051387-88.2019.8.19.0000, 6th Civil Chamber, decided on June 28, 2019; Interlocutory Appeal No. 0067138-52.2018.8.19.0000, 15th Civil Chamber, decided on May 21, 2019, and Interlocutory Appeal No. 0023138-30.2019.8.19.0000, 19th Civil Chamber, decided on August 6, 2019.
