In the judgment of Extraordinary Appeal No. 695,911, published on April 19, the Supreme Federal Court (STF) ruled that the collection of associative fees in closed allotments prior to Federal Law No. 13,465/17, which changed the content of Law No. 6,766/79 (Urban Land Subdivision Law), when the owner of the lot has not adhered to the constitution of the association responsible for the administration of the allotment.
With the provisions of the federal law of 2017, the collection becomes legitimate if the owner is associated or if, when purchasing the lot, he became aware of the obligation to pay the associative fee by express mention to this collection registered in the Real Estate Registry Office.
In the process that gave rise to the trial, the owner of a lot located in the municipality of Mairinque, in São Paulo, opposed to the collection of associative fees on the understanding that the services charged were not used by her and based on the principle of free association and the prevention of illicit enrichment. In the first and second instances, it was confirmed the legitimacy of the collection of associative fees, which required the judgment of the extraordinary appeal by the Supreme Court.
Allotments are forms of land parcelling consisting in the subdivision of a large plot of land into lots intended for building. The roads opened for circulation between the lots, when the allotment is instituted, become part of the municipal property, in accordance with the Urban Land Subdivision Law. The closed allotment, in turn, had its first regulation with the federal law of 2017, which inserted the modality of allotment with controlled access in paragraph 8 of Article 2 of the Urban Land Subdivision Law.
Due to this control, complementary services to public services are necessary within a closed allotment, such as garbage collection, signage and security services, which must be hired and organized through the association of residents. Therefore, closed allotments have always had a similar operation to the condominium structure, in which the general costs with the maintenance of common areas are prorated between the owners by charging a fee.
Given the lack of a legal provision on the mandatory payment of associative fees until then, the general position contrary to this obligation is based on the objective interpretation of Article 5, item XX, of the Federal Constitution, according to which a person cannot be obliged to associate. Some precedents of jurisprudence understood the impossibility of collecting the fee. The Superior Court of Justice (STJ) even confirmed a thesis that residents' associations could not charge fees from those who are not associated, considering the lack of manifestation of the owner's willingness to contract the obligation to pay.[1] On the other hand, there was also a discussion that the services of the association were presumable to any acquirer of an allotment lot, even without the formal expression of consent with the collection of the fees.
With the promulgation of federal law of 17, three relevant aspects to discussion were recognized: the new modality of allotment with controlled access (the so-called closed allotment), the activities carried out by associations of lot owners as similar to the activity of real estate management and the possibility of apportionment of expenses of these associations between the owners of the lots.
As a result, the Supreme Court understood that, in order for the collection of associative fee to be valid, it is necessary, at least, that the owner of the lot participated in the constitutive act of the residents’ association, agreeing to the apportionment of the common expenses of the allotment, even before the federal law of 2017, or that the obligation to pay the associative fee is registered in the so-called "mother title record" of the allotment in the Real Estate Registry Office. This guarantees publicity to the act for knowledge of all those acquiring lots after the constitution of the association.
Considering the municipal competence to regulate the planning and use of urban land, the Supreme Court also understood that, if there is a municipal law prior to the federal law of 2017 that regulates the apportionment of allotment expenses for a given municipality, the collection of fees will also be considered valid. Outside the indicated hypotheses, the collection is unconstitutional.
Recently, in a trial held on June 22 of this year, STJ understood that the associative fees due by the lot owner does not have a propter rem nature and, therefore, are not linked to the real estate property, even if the existence of such fees is mentioned in the standard contract for the purchase and sale of the lots. This implies that future acquirers of lots will not be responsible for paying off outstanding debts of associative fees, being obliged to pay the fees incurred only from their acquisition.
[1] Theme 882 of the STJ in the case of repetitive resources - REsp no. 1,280,871/SP and REsp no. 1,439,163/SP.
