ANOTHER DEFEAT FOR FALSE CONDOMINIUM COMARY GLEBA XV Case No.: 0011429-43.2018.8.19.0061 Plaintiff: "Condominium Comary Gleba XV" (actually a residents’ association)

Legal Summary and Case Analysis 

 Case No.: 0011429-43.2018.8.19.0061

 Plaintiff: "Condominium Comary Gleba XV" (actually a residents’ association) 

 Defendant: Nadja Lisboa da Silveira Guedes (non-member property owner) 

 Key Legal Findings 

 1. Right to Free Association (Federal Constitution, Article 5, XX): It is unconstitutional to impose association obligations on property owners who have not expressly agreed to join or accept such obligations.

 2. Binding Precedents Applied: - Brazilian Supreme Court (STF) – Theme 492:

 "It is unconstitutional for a residents' association to charge maintenance fees to a non-member property owner in an urban subdivision, unless there is express legal provision or voluntary adherence." 

 - Superior Court of Justice (STJ) – Theme 882: "Maintenance fees created by residents' associations do not bind non-members or those who have not expressly agreed."

 3. Case Facts:

 - The defendant purchased the property in 2010, before the effective date of Law No. 13.465/2017. 

 - There was no express agreement or contractual bond with the association. 

 - The mere benefit from services such as maintenance or security does not create an obligation to pay.

 4. Legal Outcome: 

 - The court declared the charges invalid. 

 - The claim was dismissed. 

 - The plaintiff was ordered to pay legal fees and costs.

 Legal Significance 

 This ruling reinforces the illegality of common practices where neighborhood associations charge maintenance fees to non-member property owners, especially in open subdivisions or false condominiums.

 The decision: 

 - Confirms binding precedent from both the Supreme Court and the Superior Court; 

- Protects property rights and the freedom not to associate; 

- Cancels false debts created by associations without legal basis.

 Summary of the Ruling

 (Translated Headnote) 

 "A residents' association may not collect maintenance fees from a non-member property owner who did not expressly adhere to its terms. 

The simple fact of benefiting from general services does not create a legal obligation. 

Application of STF Theme 492 and STJ Theme 882. 

Appeal granted. Original claim dismissed." 

 ACTIVE POLE NADJA LISBON OF SILVEIRA GUEDES

 PASSIVE POLE COMARY CONDOMINIUM GLEBA XV 

LAWYER (A/S) MARCELO GONCALVES DE CARVALHO | 084309/RJ CLAUDIO HABIB GOMES | 058279/RJ AVAILABILITY DATE: 2025-03-20T00:00:00 PUBLICATION DATE: 2025-03-21T00:00:00 *** SECRETARIAT OF THE 10TH CHAMBER OF PRIVATE LAW (FORMERLY 1ST CIVIL CHAMBER) ***------------------------CONCLUSIONS OF JUDGMENT------------------------ APPEAL 0011429-43.2018.8.19.0061 Subject: Condominium Expenses / Condominium in Building / Property / Things / CIVIL LAW

 Origin: TERESOPOLIS 3 CIVIL COURT Action:

 001142943.2018.8.19.0061 Protocol: 3204/2024.00730136 APPELLANT: NADJA LISBOA DA SILVEIRA GUEDES 

ATTORNEY: CLAUDIO HABIB GOMES OAB/RJ-058279

 APPELLEE: CONDOMINIUM COMARY GLEBA XV ATTORNEY: MARCELO GONCALVES DE CARVALHO OAB/RJ-084309 

 Rapporteur: DES. ANTONIO CARLOS ARRABIDA PAES

 Summary:

 CIVIL LAW AND CIVIL PROCEDURAL. ACTION FOR COLLECTION OF CONDOMINIUM FEES. PLAINTIFF, NOW APPELLEE, WHICH IS A RESIDENTS' ASSOCIATION. MAINTENANCE AND CONSERVATION FEES. NON-ASSOCIATED OWNER. ABSENCE OF EXPRESS ADHESION. IMPOSSIBILITY OF COLLECTION. UNCONSTITUTIONALITY RECOGNIZED BY THE STF (TOPIC 492) AND BY THE STJ (TOPIC 882). LEGAL RELATIONSHIP PRIOR TO LAW Nº 13.465 /2017. APPEAL GRANTED. I. CASE UNDER EXAMINATION

 1. Civil appeal filed against a judgment that ruled in favor of an action for collection of maintenance and conservation fees, filed by a homeownersʼ association against a property owner. The appellant claims that it is not a member of the plaintiff entity, having not expressly agreed to the charges, and that the property was acquired before the effect of Law No. 13,465 /2017, which makes the charge illegal in light of the understanding consolidated by the STF and the STJ.

II. ISSUE UNDER DISCUSSION

 2. There are two issues under discussion:(i) the legality of the collection of maintenance fees by a homeownersʼ association from a non-member property owner; and (ii) the application of the theses established in Theme 492 of the STF and in Theme 882 of the STJ to the specific case, considering the date of establishment of the legal relationship. 

 III. REASONS FOR DECISION 

 3. The right to free association, guaranteed by art. 5 , section XX , of the Federal Constitution , prohibits the imposition of associative obligations on property owners who have not expressly agreed to its rules. 

 4. The thesis established by the STF in Theme 492 states that "It is unconstitutional for an association to charge a maintenance and conservation fee for urban real estate subdivisions from non-associated owners until the advent of Law No. 13,465./17 (...). 

 " Therefore, charges made prior to this rule or municipal law that regulates the matter are illegal in the absence who have not agreed to them." 

 The simple fact that the owner indirectly benefits from the services provided by the association is not sufficient to generate the obligation to pay. 6. In the specific case, the property was acquired by the appellant in 2010, before the entry into force of Law No. 13,465 /2017, and there is no proof in the records of express adherence or legal bond that obliges it to pay the fees. 

 7. The lack of proof of express consent prevents the collection of maintenance fees, and it is irrelevant that the association provided general conservation and security services in the subdivision. 

8. The precedent of the STJ (REsp No. 1,991,508/SP) reaffirms that, even in situations in which the owner may have contributed with apportionment quotas, such fact does not create a mandatory legal bond.

9. Therefore, the charge must be declared undue, and the initial claim must be dismissed, with the consequent reversal of the burden of defeat.

IV. DEVICE AND THESIS

10. Appeal granted for j

 Conclusions: 

In return for the view, Des. Maria Paula Galhardo voted to support the Rapporteur, and this is the result of the appeal: by unanimous vote, the appeal was granted, in accordance with the Rapporteur's vote. Dr. Claudio Habib Gomes , the Appellant's attorney, was present.