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STATE OF RIO DE JANEIRO JUDICIARY
FOURTH CHAMBER OF PRIVATE LAW
Interlocutory Appeal (Agravo de Instrumento)¹ No.: 0091359-55.2025.8.19.0000
Court of Origin: 3rd Civil Court of Teresópolis
Appellant: Roger Kabalan Salloum and others
Appellee: Condomínio Comary Gleba VI
Judge: Dr. Marcio Olmo Cardoso Reporting
Justice (Relator): Des.² Cristina Tereza Gaulia
SYLLABUS (EMENTA)
INTERLOCUTORY APPEAL. CIVIL PROCEDURAL LAW. ENFORCEMENT OF CONDOMINIUM FEES. OBJECTION OF PRE-ENFORCEMENT (EXCEÇÃO DE PRÉ-EXECUTIVIDADE)³. HOMEOWNERS' ASSOCIATION. IMPOSSIBILITY OF FORCED COLLECTION OF FEES. THESES ESTABLISHED BY SUPERIOR COURTS. APPEAL GRANTED.
CASE UNDER REVIEW: Interlocutory appeal filed against a decision that rejected an Objection of Pre-Enforcement presented in an enforcement action moved by a homeowners' association based on the collection of condominium fees.
ISSUE IN DISPUTE: The issue consists of defining whether an association that titles itself a "Condominium" can collect associative fees from a non-associated resident.
GROUNDS FOR DECISION:
The Objection of Pre-Enforcement is the proper means for pleading matters of public order (matérias de ordem pública) susceptible to analysis without evidentiary production (dilação probatória)⁴.
The plaintiff is not a regularly constituted building condominium (condomínio edilício), but a homeowners' association without its own legal personality.
The jurisprudence of the STJ (Theme 882) and the STF (Theme 492) established the understanding that associative fees cannot be demanded from owners who are not associated or who did not adhere to the entity.
In the specific case, the defendant acquired the property prior to Law No. 13.465/2017 and formally notified their non-adherence to the association, precluding any obligation to pay.
DISPOSITIVE AND THESIS: Appeal granted. Ruling Thesis: 1. In the absence of a regularly instituted condominium, pursuant to STJ THEME 882 and STF 492, the compulsory collection of condominium fees is prohibited.
Relevant provisions cited: CPC⁵, arts. 4, 6, 8; CF/1988⁶, art. 5, XVII.
DECISION (ACÓRDÃO)
Seen, reported, and discussed are the arguments of the reference Interlocutory Appeal in which the above-indicated are parties, the Justices of the Fourth Chamber of Private Law of the Court of Justice of Rio de Janeiro, unanimously, RESOLVE TO GRANT THE APPEAL, in the form of the Relator's vote.
REPORT (RELATÓRIO)
This involves an Interlocutory Appeal filed by Roger Kabalan Salloum, Samia Kalaban Ghanem, and Charles Kabalan Salloum Ghanem against the decision of the 3rd Civil Court of Teresópolis which, in the records of the action originally filed as a collection action and subsequently converted into an enforcement action (execução)⁷, moved by Condomínio Comary Gleba VI, rejected the Objection of Pre-Enforcement presented by the defendants.
The challenged decision was issued in the following terms:
"Vistos etc. This concerns an Objection of Pre-Enforcement presented by the defendant... based on allegations that would demand an in-depth analysis of facts and complex evidence for verification. Under the consolidated jurisprudence of the Superior Court of Justice, the Objection of Pre-Enforcement is admissible only for matters of public order or issues verifiable 'de plano' (at a glance), without the need for evidentiary production... Therefore, I reject the Objection of Pre-Enforcement..."
The Appellant argued that the plaintiff characterizes itself as a mere "de facto condominium" (condomínio de fato), a circumstance that would prevent the coercive collection of fees from non-members, as well as the use of the enforcement rite (rito executivo), which is reserved only for "de jure" condominiums regularly constituted according to building condominium legislation...
OPINION (VOTO)
The appeal is timely, and the Appellant has paid the required court costs, as per the certificate on p. 22; therefore, it shall be heard.
This involves an Interlocutory Appeal filed against a decision that rejected the Objection of Pre-Enforcement presented by the Appellant, on the grounds that the matters raised therein would require evidentiary production (dilação probatória) and should be handled through an Action to Set Aside Enforcement (Embargos à Execução)⁸.
The original proceedings have undergone a long and irregular course due to procedural oscillations resulting from changes in the procedural rite by the lower court. In this regard, see the interlocutory appeal previously adjudicated by this 4th Chamber of Private Law (CDP):
“INTERLOCUTORY APPEAL. CIVIL PROCEDURAL LAW. ENFORCEMENT OF CONDOMINIUM FEES. DE FACTO CONDOMINIUM. CONVERSION OF THE RITE PERFORMED MORE THAN ONCE... NULLITY OF CONTRADICTORY DECISIONS. VIOLATION OF PROCEDURAL STABILITY. PRECLUSÃO PRO JUDICATO⁹... 1. It is prohibited for the court to perform an ex officio conversion of the enforcement rite to the ordinary rite after the stabilization of the procedural relationship... 3. Judicial conduct that contradicts previous decisions, without new factual or legal grounds, violates 'preclusão pro judicato', constituting an 'error in procedendo'¹⁰ and resulting in the nullity of the decision.” (0039332-95.2025.8.19.0000 - Interlocutory Appeal - Justice Cristina Tereza Gaulia - Judgment: 07/22/2025).
The records having returned to the court of origin, with an express determination for the 1st instance to adjudicate the Objection of Pre-Enforcement, the currently challenged decision followed.
The enforcement rite was maintained by the 2nd instance court, and we proceed to the appraisal of the objection which the lower court rejected—this decision being the object of the present appeal. It must be stated from the outset that the process has had a long duration, alongside the aforementioned procedural irregularities; the principles of celerity and efficiency must now prevail, for the purpose of reaching an effective solution pursuant to Arts. 4, 6, and 8 of the CPC...
It is, therefore, necessary to analyze the possibility of the plaintiff (Condomínio Comary Gleba VI) demanding the payment of condominium fees from the defendant (Roger Kabalan Salloum and others). It should be highlighted that the condominium was considered irregular, with the cancellation of its CNPJ¹¹ (National Registry of Legal Entities) ordered by the Federal Revenue Service...
Following this cancellation, a civil association was subsequently created with the objective of supporting the management of the subdivision.
Regarding homeowners' associations, the STJ (Superior Court of Justice) has a defined understanding that the collection of associative fees is voluntary and cannot be imposed on owners who have not joined the association making the collection. See Theme 882:
“Maintenance fees created by homeowners' associations do not bind non-members or those who have not consented to them.”
The ratio decidendi of said ruling concerns "gated subdivisions" (loteamentos fechados) and is grounded in the constitutional guarantee of freedom of association, provided in Art. 5, XVII, of the Federal Constitution.
STATE OF RIO DE JANEIRO JUDICIARY
FOURTH CHAMBER OF PRIVATE LAW Interlocutory Appeal No.: 0091359-55.2025.8.19.0000
VOTE (INTEGRAL AND LITERAL CONTINUATION)
The appeal is timely, and the appellant has paid the required costs, according to the certificate on fl. 22, therefore it must be known. It is an interlocutory appeal filed against a decision that rejected the objection of pre-enforcement presented by the appellant, on the grounds that the matters raised therein would require evidentiary production, and should be handled by means of an action to set aside enforcement (embargos à execução).
The process of origin has had a long and irregular processing due to procedural oscillations resulting from the change of the procedural rite by the lower court. In this vein, check the interlocutory appeal previously judged by this 4th CDP:
“INTERLOCUTORY APPEAL. CIVIL PROCEDURAL LAW. ENFORCEMENT OF CONDOMINIUM FEES. DE FACTO CONDOMINIUM. CONVERSION OF RITE PERFORMED MORE THAN ONCE. DECISION A QUO POSTERIOR TO THE PRESENTATION OF OBJECTION OF PRE-ENFORCEMENT, AFTER THE COURT HAD CONVERTED THE ORDINARY RITE TO THAT OF EXTRAJUDICIAL ENFORCEMENT. NEW CONVERSION OF THE RITE TO THE STATUS QUO ANTE. NULLITY OF CONTRADICTORY DECISIONS. OFFENSE TO PROCEDURAL STABILITY. PRECLUSÃO PRO JUDICATO. APPEAL GRANTED. I. CASE UNDER REVIEW 1. Interlocutory appeal filed against a decision that, in the enforcement for extrajudicial title proposed by a de facto condominium, converted, ex officio, the procedural rite to that of extrajudicial enforcement, and afterwards, again to the ordinary rite, when there was already service of process and offering of objection of pre-enforcement.
II. ISSUE IN DISPUTE 2. The following are the issues in dispute: (i) to verify if the ex officio conversion of the rite from enforcement to knowledge is valid, after six years of processing as enforcement and after the offering of objection of pre-enforcement by the debtor; (ii) to examine if there was a violation of preclusão pro judicato and the principles of procedural stabilization.
III. REASONS FOR DECIDING 3. The court a quo had converted the ordinary rite to that of enforcement by extrajudicial title, after it had been converted from summary to ordinary, conducting the enforcement process for more than six years with constrictive acts and the presentation of objection of pre-enforcement by the defendants.
4. The new conversion of the rite, ex officio, after the presentation of the defendants' defense, characterizes contradictory conduct by the court and nullity (error in procedendo) wounding the stability of the lawsuit. 5. The jurisprudence of the STJ recognizes preclusão pro judicato as a limit to judicial action that revisits issues already decided in the same process, without supervening modification of fact or law. 6. The conversion of rite after service of process, without the consent of the opposing party, offends the principle of stabilization of the lawsuit, according to the understanding settled in Theme 320/STJ. 7. The maintenance of the process in the enforcement rite imposes the judgment of the objection of pre-enforcement by the grounds presented.
IV. DISPOSITIVE AND THESIS 8. Appeal granted. Judgment thesis: 1. It is prohibited for the court to convert ex officio the enforcement rite to the ordinary one after the stabilization of the procedural relationship, without the request of the plaintiff and after the adversarial process has been carried out. 2. The court cannot, under the grounds of absence of an enforceable title, change the rite of the action after years of processing and relevant procedural acts, especially to the detriment of the enforced party. 3. Judicial conduct that contradicts previous decisions, without new factual or legal grounds, offends preclusão pro judicato, constituting an error in procedendo and entailing the nullity of the decision. Relevant provisions cited: CPC, arts. 139, I; 471; 784, VIII; 917, § 1 (by analogy); CC, art. 1,797, I. Relevant jurisprudence cited: STJ, REsp n. 1,678,947/RJ, Rel. Min. Nancy Andrighi, Third Panel, judged on 03/13/2018, DJe of 03/20/2018; TJ/RJ, AI nº 0007761-39.2007.8.19.0000, Rel. Des. Maria Augusta Vaz, j. 03/11/2008, 1st Civil Chamber.” (0039332-95.2025.8.19.0000- INTERLOCUTORY APPEAL - Justice CRISTINA TEREZA GAULIA Judgment: 07/22/2025 - FOURTH CHAMBER OF PRIVATE LAW - FORMER 5th CIVIL CHAMBER)
The records having returned to the origin, with the express determination that the 1st degree court judge the objection of pre-enforcement, the now-appealed decision ensued.
The enforcement rite was maintained by the 2nd degree court, passing to the appraisal of the objection that the appealed court rejected, which decision is the object of this appeal. Let it be said plainly that the process has had a long processing, aside from the procedural irregularity already mentioned, the principles of celerity and efficiency should now prevail, for the purpose of achieving an effective solution in the form of arts. 4, 6 and 8 of the CPC, which are transcribed:
“Art. 4. The parties have the right to obtain within a reasonable time the integral solution of the merit, including the satisfying activity.” “Art. 6. All subjects of the process must cooperate with each other so that a fair and effective merit decision is obtained within a reasonable time.” “Art. 8. When applying the legal system, the judge shall attend to the social ends and the requirements of the common good, safeguarding and promoting the dignity of the human person and observing proportionality, reasonableness, legality, publicity, and efficiency.”
Consequently, the analysis is imposed as to the possibility of the plaintiff (Condomínio Comary Gleba VI) requiring from the defendant (Roger Kabalan Salloum and others) the payment of condominium fees. It should be underlined that the condominium was considered irregular, with the cancellation of its CNPJ determined by the Federal Revenue Service, according to the official document of the National Registry of Legal Entities on fl. 6. As a result of this cancellation, a civil association was created next with the objective of supporting the management of the subdivision (fls. 146/153).
Regarding homeowners' associations, the STJ has a defined understanding in the sense that the collection of associative fees is voluntary, and cannot be imposed on owners who have not joined the association that makes the collection. See Theme 882: “The maintenance fees created by homeowners' associations do not oblig any non-members or those who did not consent to them.” The ratio decidendi of said judgment deals with gated subdivisions and is based on the constitutional guarantee of freedom of association, provided for in art. 5, XVII, of the Federal Constitution¹. See an excerpt from the Decision:
“[...] Thus, in a synthesis of what was established in the various precedents on the subject, it is concluded that this type of association cannot be considered a condominium in the molds of Law No. 4,591/1964. This is because for the incidence of the mentioned legislation to exist, it is necessary, among other requirements, that the acquisition of an ideal fraction of the land be linked to the real estate development activity. On the other hand, the so-called gated subdivisions are closer to the subdivision disciplined by Law No. 6,766/1979, which provides for the partitioning of urban soil, and although they present the same urbanistic requirements demanded for the implementation of a conventional subdivision, they possess their own characteristics that end up differentiating them, especially by the fact that access to roads and public places in gated subdivisions are restricted to the traffic of residents and visitors. Therefore, gated subdivisions, also known as 'de facto condominiums', lack specific legislation, and the lack of legal provision creates some impasses, among which the problem regarding the apportionment of common expenses stands out. In this context, to meet the expenses of availability and maintenance of services that benefit common areas within the scope of gated subdivisions, homeowners' associations are created. However, in the terms of the consolidated jurisprudence of this Court, by virtue of the legal nature of the civil association, it is not possible to require compulsory payment of contribution from an owner not associated with the entity for attacking the freedom of association provided for in the Federal Constitution itself. [...]”
Furthermore, also the Supreme Federal Court, when judging Theme 492, set the following thesis: “It is unconstitutional to collect by an association maintenance and conservation fees for an urban real estate subdivision from a non-associated owner until the advent of Law No. 13,465/17, or a previous municipal law that disciplines the issue, from which point the apportionment of property owners, rights holders, or residents in controlled-access subdivisions becomes possible, who i) already possessing a lot, adhere to the constitutive act of entities equated to property managers or (ii) being new acquirers of lots, the act constituting the obligation is registered in the competent Real Estate Registry.”
In the concrete case, the property was acquired by the defendant on 01/23/2001 (fls. 8/9), that is, on a date prior to the validity of Law No. 13,465/2017, there being no evidence of their adhesion to the association. Furthermore, the defendant expressly notified the responsible association, according to documents on fls. 154/156, manifesting their lack of interest in associating. Given this, the collection of condominium or associative fees is inadmissible, under the terms of the theses set by the STF and the STJ.
In this sense: (0008659-48.2016.8.19.0061– APPEAL - Des. NATACHA NASCIMENTO GOMES TOSTES GONÇALVES DE OLIVEIRA - Judgment: 02/28/2023 SEVENTEENTH CHAMBER OF PRIVATE LAW FORMER 26th CIVIL CHAMBER) DECLARATION OF NON-EXISTENCE OF LEGAL RELATIONSHIP. CONDOMINIUM FEE. JUDGMENT OF DISMISSAL. GRANTING OF THE COUNTERCLAIM. REVERSAL. NON-EXISTENCE OF CONDOMINIUM. DE FACTO SOCIETY. ABSENCE OF LEGALITY IN COLLECTION. STJ THEME 882 AND STF THEME 492. DEFINED TEMPORAL MILESTONE. ABSENCE OF PROOF THAT THE APPELLANT WAS AN ASSOCIATE BEFORE LAW 13,465/2017. APPEAL GRANTED. Appeal Civil. Claim for the deconstitution of condominium debt on the argument that the condominium is non-existent. Judgment of dismissal and granting of the counterclaim. Author's appeal. Non-existence of regularly constituted condominium. Although there is a record in the property's deed and convention, this was carried out in non-conformity with the determination of specific legislation (Law 4,591/64). Thesis established in theme 492 of the STF: “It is unconstitutional to collect by an association maintenance and conservation fees for an urban real estate subdivision from a non-associated owner until the advent of Law No. 13,465/17, or a previous municipal law that disciplines the issue, from which point the apportionment of property owners, rights holders, or residents in controlled-access subdivisions becomes possible, who i) already possessing a lot, adhere to the constitutive act of entities equated to property managers or (ii) being new acquirers of lots, the act constituting the obligation is registered in the competent Real Estate Registry”. Property acquired in 2011, therefore before Law 13,465/2017. Association not configured. Dismissal of the counterclaim. Reversed succumbing. Appeal granted.
(0019025-56.2017.8.19.0209 - APPEAL Des. EDSON AGUIAR DE VASCONCELOS - Judgment: 04/27/2021 - SEVENTEENTH CIVIL CHAMBER) CIVIL APPEALS - CIVIL LAW - ASSOCIATION OF FRIENDS OF MINISTRO LAFAYETTE ANDRADA STREET - CONTRIBUTION FOR SERVICES RENDERED IN BENEFIT OF ALL CONDOMINIUMS - NON-EXISTENCE OF ASSOCIATIVE BOND - ALLEGATION OF UNJUST ENRICHMENT - THESIS DEFINED BY THE STJ IN THE ANALYSIS OF THEME 882 - CANCELLATION OF SUMMARY No. 79 OF THE TJ/RJ - OWNERS WHO MANIFESTED THE INTENTION OF DISCONNECTION FROM THE ASSOCIATION BY NOTIFICATION - UNDERSTANDING CONSECRATED BY THE STF IN THE JUDGMENT OF RE 695911, OF RECOGNIZED GENERAL REPERCUSSION, IN THE SENSE OF THE UNCONSTITUTIONALITY OF THE COLLECTION FROM A NON-ASSOCIATED OWNER, PRIOR TO THE ADVENT OF LAW 13,645/2017 COUNTERCLAIM - LITIGATION OF BAD FAITH NON-OCCURRENCE - MORAL DAMAGES NOT CONFIGURED - DISMISSAL. According to the understanding of the STJ, the real estate acquisition in the area of operation of the association does not imply associative affiliation, there being no talk of tacit consent, whether by the time in which it carried out the payment of associative fees, as if associated it were, or by the effective use of the benefits provided to the residents. The matter was the subject of RE 695.911-SP, in which the STF recognized the general repercussion of Theme 492, establishing a temporal milestone for the collection of associative fees, from the edition of Law 13,465, of July 11, 2017. Denied granting to the appeals.
(0030254-52.2013.8.19.0209 – APPEAL Des. ALVARO HENRIQUE TEIXEIRA DE ALMEIDA Judgment: 11/11/2020 - TWENTY-FOURTH CIVIL CHAMBER) CIVIL APPEAL. COLLECTION ACTION. HOMEOWNERS' ASSOCIATION. CLAIM FOR RECEIPT OF MAINTENANCE FEES. ATYPICAL CONDOMINIUM. JUDGMENT OF GRANTING. APPEAL OF THE DEFENDANT PARTY. JUDGMENT THAT DESERVES REFORM. HOMEOWNERS' ASSOCIATION FEES THAT ARE ONLY DEMANDABLE IF THE RESIDENT EXPRESSLY ASSOCIATED HIMSELF, ACCORDING TO THE UNDERSTANDING OF THE STJ, IN THE SEAT OF REPETITIVE APPEAL (THEME 882). IN CASU, THE DEFENDANT PARTY, NOW APPELLANT, ACQUIRED THE PROPERTY IN 1981, AND ONLY IN 2004 THE ASSOCIATION WAS AUTHORIZED TO INSTALL GATES IN THE AREA THAT COVERS THE SUBDIVISION AND ONLY IN 2011 THERE WAS THE HIRING OF A SERVICE PROVIDER COMPANY FOR VIGILANCE. APPELLANT WHO DID NOT ADHERE TO THE ADHESION CONTRACT AND TO THE SYSTEM OF APPORTIONMENT OF COMMON EXPENSES ADOPTED BY THE HOMEOWNERS' ASSOCIATION. THE SPECIAL APPEAL CONDUCTOR OF THEME 882 OF THE STJ (RESP 1280871 /SP) STATED THAT THE HOMEOWNERS' ASSOCIATION IS “MERE CIVIL ASSOCIATION AND, CONSEQUENTLY, MUST RESPECT INDIVIDUAL RIGHTS AND GUARANTEES, APPLYING, IN THE SPECIES, THE THEORY OF HORIZONTAL EFFICACY OF FUNDAMENTAL RIGHTS”. THE RIGHT TO FREE ASSOCIATION IS GUARANTEED BY THE FEDERAL CONSTITUTION, IN ITS ARTICLE 5, ITEM XX. INDEED, CONSIDERING THAT THE PLAINTIFF ASSOCIATION IS NOT A CONDOMINIUM IN THE MOLDS OF LAW 4591 AND GIVEN THE NON-CONSENT OF THE DEFENDANT PARTY IN ADHERING TO THE ASSOCIATION AND CONSEQUENTLY WITH THE NON-PAYMENT OF MAINTENANCE FEE OR CONTRIBUTION OF ANY NATURE TO THE PLAINTIFF ASSOCIATION, IT IS IMPOSED TO RECOGNIZE THE INADMISSIBILITY OF THE COLLECTION POSTULATED BY THE PLAINTIFF PARTY, NOW APPELLEE. APPEAL TO WHICH IS GIVEN GRANTING, TO JUDGE THE INITIAL REQUEST DISMISSED, WITH THE CONSEQUENT INVERSION OF THE SUCCUMBING BURDENS.
That said, I vote for the GRANTING of the appeal, to uphold the objection of pre-enforcement presented by the appellant, declare the nullity of the enforcement and, therefore, dismiss the case, with support in arts. 803, I and III², 924, I³, and 485, VI⁴, CPC.
Rio de Janeiro, December 9, 2025. Des. Cristina Tereza Gaulia Relator
TRANSLATOR'S EXPLANATORY NOTES FOR FOREIGN JURISTS
Agravo de Instrumento (Interlocutory Appeal): In Brazil, this is an immediate appeal against specific "interlocutory decisions" (intermediate rulings) made by a trial judge before the final judgment.
Des. (Desembargador): The title for a Justice in a State Court of Appeals (Second Instance).
Exceção de Pré-Executividade (Objection of Pre-Enforcement): A judge-made procedural defense in Brazilian law that allows a debtor to challenge an enforcement action without posting bond/collateral, provided the defense is based on "matters of law" or "liquid evidence" that does not require a trial for fact-finding.
Dilação Probatória (Evidentiary Production/Discovery phase): Refers to the stage of the process where witnesses are heard or experts provide testimony. If a matter requires this, it cannot be decided via "Exceção de Pré-Executividade."
CPC: The Brazilian Code of Civil Procedure (Código de Processo Civil).
CF/1988: The Constitution of the Federative Republic of Brazil of 1988.
Execução (Enforcement Action): A legal proceeding based on an "Enforceable Extrajudicial Title" (like a contract or a legally recognized debt) where the court moves directly to seize assets, bypassing the "Knowledge Phase" (trial) of a standard lawsuit.
TRANSLATOR’S EXPLANATORY NOTES
Embargos à Execução (Action to Set Aside Enforcement): Unlike the Exceção de Pré-Executividade, this is a full-fledged incidental lawsuit filed by the debtor to challenge an enforcement. It allows for a full discovery phase (dilação probatória) but, in many cases, requires the debtor to guarantee the court (post bond/escrow) to stay the execution.
Preclusão Pro Judicato: A civil law concept meaning "judicial estoppel" or "issue preclusion" applied to the judge. It prevents a judge from reconsidering or overturning their own prior interlocutory decisions within the same proceeding, unless there is a change in the facts or the law.
Error in Procedendo: A Latin term used in Brazilian law to describe a procedural error committed by the judge (a flaw in the "process" rather than the "substance" of the law), which leads to the nullity of the act.
CNPJ (Cadastro Nacional da Pessoa Jurídica): The federal tax identification number for companies and entities in Brazil. The court notes that the plaintiff's "Condominium" ID was canceled, forcing it to act as a "Civil Association," which changes its legal powers.
Freedom of Association (Art. 5, XVII and XX, CF/1988): In Brazil, this is a fundamental right. The courts have used this to block homeowners' associations from forcing residents to pay fees if they haven't joined. This is the core of the Themes 882 (STJ) and 492 (STF).
CNPJ Canceled: A condominium in Brazil needs a tax ID (CNPJ). The fact that the court canceled its ID means it cannot legally act as a "Building Condominium" (Condomínio Edilício), which has legal powers to seize assets. It is reduced to a "Civil Association," which needs the owner's voluntary signature to charge anything.
Ordinary Rite vs. Enforcement Rite: The plaintiff tried to use the Enforcement Rite (Execução), which is fast and skips the trial. The Court ruled this is illegal because there is no "certain and liquid" debt without a formal membership.
Succumbing Burdens (Ônus Sucumbenciais): This refers to the "English Rule" where the losing party pays the winner's attorney fees and court costs.
Ideal Fraction (Fração Ideal): A concept where the owner doesn't own a specific "lot" in the deed, but a percentage of the total area. Associations use this to pretend they are condominiums, but the Court here rejected that argument for this specific subdivision.
Legal Analysis of Unlawful Acts in the Case of the “Condomínio Comary Gleba VI” in Teresópolis by AI CHATGPT
Factual Context and Relevant Judicial Decisions
The alleged “Condomínio Comary – Gleba VI” is located in Carlos Guinle neighborhood, originating from the regular and open subdivision known as Loteamento Jardim Comary) in Teresópolis (RJ), and in fact corresponds to an open urban subdivision (loteamento urbano aberto), with public roads and areas served by the municipality. Several recent judicial decisions have recognized the non-existence of a regularly instituted building condominium (condomínio edilício) in that location, as well as the irregularity of attempts to treat it as a gated condominium. In particular, the Court of Justice of the State of Rio de Janeiro (TJ-RJ), in Interlocutory Appeal (Agravo de Instrumento) No. 0091359-55.2025.8.19.0000, decided that there is no valid condominium in Gleba VI, prohibiting the charging of “condominium dues” (“cotas condominiais”) from non-associated residents. In that appellate decision, it was recorded that the plaintiff entity was nothing more than a de facto residents’ association, without its own legal personality, and that its condominium convention and CNPJ had been annulled by a final and unappealable judicial decision, because they had been obtained in an irregular or fraudulent manner, in disagreement with the legal requirements for the formation of a building condominium.
This TJ-RJ decision aligned with the settled case law of the superior courts. The Superior Court of Justice (STJ) (Theme 882) established the thesis that “maintenance fees created by residents’ associations do not bind non-members or those who did not assent to them”, in respect of the freedom of association guaranteed by the Constitution (CF, art. 5, XX). Likewise, the Federal Supreme Court (STF) (Theme 492, RE 695.911/SP) recognized the unconstitutionality of compulsory charging of fees by subdivision associations from non-members, at least until the entry into force of Law No. 13.465/2017. In the case of Jardim Comary, the owners acquired their lots decades before that law and many formally expressed their non-adhesion to the existing associations, so they cannot be forced to contribute.
It is important to highlight that from the outset Jardim Comary was conceived as a subdivision (loteamento), and there is no valid registration of a building condominium over the glebas that comprise it. As found by the Public Prosecutor’s Office and by the Municipality of Teresópolis, all attempts to institute “condominiums” in the glebas of the subdivision were blocked by earlier judicial decisions, with finality (res judicata) in 1968, 1995, and 2002, which canceled irregular registrations and annulled CNPJ registrations obtained improperly. In 2003, for example, there was the cancellation, through a judicial proceeding, of the real estate registry record of a condominium convention that had been made without legal support. The Federal Judiciary also intervened: a judgment rendered in 2012 (confirmed by TRF-2) rejected a request for “revalidation” of CNPJs of Comary associations, stating that the plaintiff collectivities had no legal personality and did not meet the requirements of a building condominium, evidencing “frauds” and the “untrustworthiness (inidoneidade) of all acts” carried out by the simulated Comary condominiums.
Therefore, it was already consolidated at the judicial level that Jardim Comary is an open subdivision, and the pretensions to transform it into a “de facto” gated condominium are illegitimate. The roads and common areas are public and for common use of the people, maintained by the Municipality (lighting, garbage collection, public security, etc.). In this condition, any restriction of access or compulsory charging by residents’ associations violates the current legal order, violating freedom of association and the urban land subdivision laws (Decree-Law 58/1937, Law 6.766/79, among others).
Despite this legal and jurisprudential framework, the leaders of the so-called “Condomínio Comary Gleba VI” insisted on calling themselves a building condominium and on filing collection lawsuits against non-associated residents, based on documents known to be irregular. This gave rise to the analysis of possible unlawful acts committed both by the first-instance judge who dealt with these actions and by those responsible for the Real Estate Registry Office (Cartório de Registro de Imóveis) of Teresópolis who may have participated in registry irregularities.
Acts of the Judge of the 3rd Civil Court of Teresópolis – Possible Unlawful Acts
The decisions issued by the first-instance judge (3rd Civil Court of Teresópolis) in the conflict involving Gleba VI raise serious questions regarding the regularity of his official conduct. As seen, the trial court allowed for years the processing of an enforcement proceeding (execução) of “condominium fees” filed by the residents’ association, even though there were strong indications that the plaintiff party had no regular legal existence nor an adequate enforceable instrument (título executivo). Case records reveal procedural fluctuations and contradictory decisions by the judge, who sometimes converted the procedural track and later reversed course, generating procedural instability considered null by the TJ-RJ. Moreover, even after express determinations from the appellate court to address the merits (such as Agravo No. 0039332-95.2025, which ordered the judge to decide the motion/exceptions), the judge resisted applying the jurisprudential understanding, summarily rejecting the pre-enforcement exception (exceção de pré-executividade) with a formal argument of need for evidence, instead of recognizing, right away, the non-existence of an enforceable title and of a substantive legal relationship.
Given this context, let us examine possible criminal unlawful acts and functional infractions that may have been committed by the judge:
Ideological Falsehood (Art. 299 of the Penal Code) – The crime of ideological falsehood consists of inserting or causing to be inserted a false statement, or a statement different from what should be written, in a public document, or omitting a statement that should appear in it, with the purpose of harming a right, creating an obligation, or altering the truth of facts. In this case, although judicial decisions themselves are not “false documents” in the traditional sense, there are indications of use of information known to be false in the case file that the judge would have ignored or even endorsed. For example, it was pointed out that in the ongoing actions there were condominium conventions and certificates presented as if valid, when in fact the registration of those conventions had been canceled and the legal entity “Condomínio Comary Gleba VI” never legally existed.
The blog Vítimas dos Falsos Condomínios alleges that false public documents supported proceedings in the TJ-RJ, in which the plaintiff party was not lawfully constituted (lacking civil registration, required by art. 45 of the Civil Code).
If the judge knew of these defects and, even so, in his orders and judgments treated the plaintiff entity as a regular condominium, and may have validated information contrary to reality (e.g., affirming the existence of a “condominium” or the validity of a convention known to be void), his conduct may be viewed as ideological falsehood or, at a minimum, complicity with documentary fraud.
It should be emphasized that ideological falsehood is a common crime and can be committed by a public official; a judge who gives faith to canceled documents or who deliberately fails to mention a known nullity of a certain registry entry may fall within this typification, provided that the intent (dolo) to alter the truth is proven.
Malfeasance in Office / Prevarication (Art. 319 of the Penal Code) – Prevarication is configured when a public official delays or fails to perform an official act, or performs it contrary to an express legal provision, to satisfy a personal interest or feeling. In the case under analysis, there are indications that the judge failed to perform due official acts and openly contradicted the legal order to improperly favor the plaintiff association. For example, even in the face of solid binding case law of the STF/STJ and evidence of condominium irregularity, the judge did not promptly dismiss the unfounded enforcement proceeding, prolonging the case for about eight years.
This implied maintenance of attachments (penhoras) and undue charges against residents, something later held to be null. Such omission and unjustified delay in applying the law clearly benefited the association’s leaders (who gained time and leverage over residents) to the detriment of the defendants. In addition, by insisting on blatantly illegal procedures—such as converting the procedural track ex officio to an enforcement track and then reversing course, contrary to the stabilization of the dispute—the judge violated an express provision of the CPC and the appellate court’s command, suggesting a possible personal intent to favor the association’s claim or refuse to yield in the face of superior decisions. If it is shown that he acted moved by personal feeling (friendship with members of the association, for example, or ideological conviction to oppose superior guidance) or by interest (hypothesis of indirect benefit), his conduct may fit prevarication.
It should be remembered that deliberately disobeying settled case law and keeping citizens improperly bound to illegal obligations constitutes violation of the functional duty of impartiality and legality, and may indeed reveal the specific intent required for prevarication (satisfaction of a personal interest or feeling). As a TJ-RJ appellate decision warns, it is up to the State/Judge to prevent practices of usurpation of public power by private parties, under penalty of legitimizing true private “militias.” If, on the contrary, the judge omits that duty and allows such abuses, he may be committing a serious fault subject to sanction.
Abuse of Authority (Law 13.869/2019) – Even if no specific penal type beyond those cited in the Penal Code is identified, the judge’s conduct may be framed under the Abuse of Authority Law, which defines crimes committed by public agents in the exercise of their functions. In particular, abuse of authority includes “ordering or executing a measure depriving individual liberty, in a manifestly illegal manner” (art. 9) or “proceeding to obtain evidence by manifestly illegal means” (art. 25). Adapting this to the civil case, by analogy, one could consider abuse of authority the act of illegally constraining residents to pay sums or submit to restrictions, through judicial decisions knowingly contrary to the current law. The Teresópolis judge, by imposing patrimonial constraints based on an unenforceable debt and in favor of an entity without legal personality, performed an act manifestly incompatible with the legal order. The maintenance of enforcement acts known to be null (attachment over a property or bank account, for example) even after unequivocal proof of nullity of the title, may be seen as abuse of power. In addition, the new Abuse of Authority Law lists as a crime decisions issued with evident conflict with binding case law aimed at harming someone by mere discretion. Although the judge has autonomy in interpreting the law, that autonomy does not include the deliberate noncompliance with a superior court decision in a concrete case.
In the Comary case, the judge’s resistance in accepting the theses established by the STF and STJ—going so far as to invoke outdated understandings such as TJ/RJ Súmula 79 (already canceled for unconstitutionality)—may be interpreted as a deliberate excess of authority. According to the blog’s allegations, some judges continued improperly applying the former Súmula 79 even after its revocation, “disqualifying” the abuses of the false condominiums and condemning residents to extortionate payments. Such behavior violates the duties of adequate reasoning and respect for binding precedents (CPC art. 927), and may, in theory, characterize an abuse of office subject to accountability.
Breach of Functional Duty / Administrative Improbity – Regardless of whether specific crimes are configured, the judge’s conduct may constitute administrative infractions and an act of administrative improbity. Under the Organic Law of the Judiciary (LOMAN) (LC 35/1979) and the Code of Ethics of the Judiciary, a judge must obey the Constitution and the laws, act with impartiality, independence, and respect for court decisions. If a judge deliberately disobeys a superior-court decision or binding normative, he commits a serious functional offense. In the present case, the first-instance judge ignored for a long time the real legal nature of the gleba (subdivision), directly affronting the final decision that annulled the “condominium” and the CNPJ.
This conduct may be interpreted as violation of the principles of legality and supremacy of the public interest, subject to disciplinary review by the TJ-RJ’s Internal Affairs/Corregedoria or by the National Council of Justice (CNJ).
Furthermore, in the civil sphere, such behavior may be considered an act of administrative improbity, under Law No. 8.429/1992 (notably for violating the principles of public administration—art. 11, caput). Acting in disagreement with the law to improperly benefit one of the parties—here, giving continued life to undue charges by an irregular association—constitutes generic intent (dolo genérico) to frustrate the application of the law and to attack the principles of impartiality and legality, fitting improbity (subjecting the agent to administrative, civil, and political sanctions).
It should be emphasized that characterizing improbity requires proof of intent (under the new wording of the law), but the circumstances shown—such as insistence on decisions contrary to the CF/88 and the subdivision laws—may indicate that intent. It is worth mentioning the seriousness noted by Justice Benedicto Abicair in an analogous case: he compared the imposition of “closed” associations to a parallel power (militia) and emphasized that it is the judge’s duty to curb such unlawful practices. When the judge does the opposite—tolerates or legitimizes those practices—he clearly infringes his basic functional duties.
In summary, the analysis of the facts suggests that the Teresópolis judge acted in disagreement with the law and jurisprudence consciously, potentially incurring ideological falsehood (by endorsing false information in the case file), prevarication (by omitting due acts and deciding against the law to benefit the plaintiff party), and abuse of authority (by imposing judicial measures that are manifestly illegal). Such conduct also violates basic functional duties, subjecting him to administrative responsibility and even to improbity, if specific intent in maintaining these unfair decisions is demonstrated.
Note: Allegations of passive corruption could also be raised if there is evidence of an undue advantage (for example, the blog mentions that residents would have paid US$120,000 in 1997 to obtain a judicial decision favorable and contrary to the law, which, if proven, would reveal corruption of public agents at the time). However, up to now there is no official information in the records linked to Gleba VI attributing to the current judge receipt of bribes. Without prejudice, that allegation reinforces the need for rigorous investigation, given the murky history involving earlier decisions in the neighborhood.
Acts of the Real Estate Registry Office of Teresópolis – Possible Unlawful Acts and Infractions
The controversy over the “Condominium” Comary Gleba VI also exposed possible serious registry irregularities. The 2nd Real Estate Registry Office of Teresópolis would be responsible for the real estate records of Jardim Comary, and its actions (or omissions) allowed, to some extent, the appearance of a non-existent condominium. The analysis is based on available allegations and on elements contained in judicial decisions and technical opinions:
Ideological Falsehood and Registry Fraud: There are indications that improper registrations or annotations were made in the real estate registry regarding Gleba VI (and other glebas) that did not correspond to the legal reality of the property, constituting registry fraud. For example, it is mentioned that a “condominium convention” of Gleba 8-D (similar to the others) was taken to registration in the Deeds and Documents Registry, and it is possible that an attempt was made to register it in the Real Estate Registry (RI), without any valid legal act of condominium institution ever having existed.
This practice—registering a condominium convention in isolation, without the prior registration of a real estate incorporation required by Law 4.591/64—is illegal and fraudulent, as recognized by the Federal Judiciary: “a convention is not an instrument for instituting a condominium; one can only make a condominium convention for something that has already been instituted.”
In the case of Jardim Comary, the judicial ruling in 2003 canceled the improper registration of that convention. If the real estate registrar contributed to inserting false data into an official book—for example, recording that a given property was subject to a building condominium regime when this was not true—such conduct constitutes ideological falsehood (Penal Code art. 299) or even forgery of a public document (Penal Code art. 297).
The blog reports that frauds in the Real Estate Registry of Granja Comary were proven in court, pointed out by the Municipality, by the Public Prosecutor’s Office (Civil Inquiry 702/07), and even by a judicial expert report. This suggests that the registry office admitted mistakes or irregularities in the entries, possibly regarding the description of the glebas, the public areas, or notes indicating the existence of a “condominium.”
From the moment such frauds are confessed, the registrar may have incurred penal unlawful acts. By way of example: if there was issuance of certificates containing false information or intentional omissions (such as omitting that the streets were public, or declaring the existence of a “condominium” without legal basis), this constitutes documented ideological falsehood.
Likewise, the possible annotation of a judicial decision obtained through corruption (as per the 1997 allegation mentioned) would be null, and its conscious maintenance by the registry office would constitute fraud. Each registry entry must reflect the legal reality; any intent (dolo) in altering or maintaining a false record implies criminal responsibility of the registrar.
Prevarication by the Registrar: The real estate registrar, although not a statutory civil servant, exercises a delegated public function (Law 8.935/94) and may commit prevarication. In the context under analysis, prevarication would occur if the registrar failed to perform an official act required by law to satisfy a personal interest or the interest of third parties.
What would those acts be? First, denying registration to a title that does not meet legal requirements is the registrar’s duty (Law 6.015/73—LRP, art. 198).
If the association at some point presented a condominium convention or similar document for real estate registration, the registrar had the functional duty to issue a negative qualification and refuse registration for lack of legal support (after all, it was a land subdivision already registered as a subdivision, and it would not be appropriate to register a later condominium).
Apparently, in 1993 and 2004 assemblies occurred that generated “conventions” of Gleba VI and similar ones; it is even known that the registration of the Gleba 8-D convention was judicially canceled in 2003, which indicates that it was in fact annotated in the real estate registry and only undone after a court order—i.e., the registrar at the time made an error or yielded to pressure to register an invalid act. If that improper entry resulted from intentional action or omission by the registrar (for example, he registered it aware of the irregularity or failed to cancel it ex officio when he should have), prevarication or even fraudulent collusion is configured. Second, it is reported that all CNPJ registrations of the false Comary condominiums were annulled in compliance with judicial judgments, precisely because they were improper registrations. It is expected that the real estate registrar, aware of those judgments, would carry out the necessary annotations to give publicity to the non-existence of the condominium.
Failure to make these mandatory annotations (LRP art. 167, II, 12: which provides for annotation of judicial decisions that change the situation of the property) can be understood as failure to perform an official act against an express legal provision, satisfying the associations’ interest in maintaining the appearance of a condominium. This fits the prevarication type if done intentionally to benefit those groups. For example, it was reported that the Municipality, in a judicial action, declared that all streets of the subdivision are public, and that Gleba XI-B was an irregular subdivision; in that action, the Judiciary recognized registry fraud and dismissed the false condominium’s claim, imposing a fine for dilatory appeals.
The registrar, notified of that decision, should annotate that information in the property record (annotation of the judicial declaration of the public nature of the roads, based on art. 246, §1, of the LRP). If he did not do so, omitting relevant information, he maintained an active misleading record—which clearly served the association’s interests (which could continue alleging privacy of the roads) and violated his duties. In short, the registry office’s omissive conduct in correcting the entries and purging misleading references may constitute prevarication.
Registry Fraud and Related Offenses: The expression “registry fraud” encompasses a set of possible irregularities committed within the registry office. In addition to the ideological falsehood already mentioned, one can cite the possibility of insertion of false data into an information system (Penal Code art. 313-A)—a crime that may occur if the registrar, using registry information systems, inserted or maintained a datum known to be false (for example, maintaining a “Condomínio Comary Gleba VI” entry in the index system as if it were the owner of common areas, when no valid legal entity exists). Another pertinent figure is suppression of a document (Penal Code art. 305), if documents contrary to the association’s interests were hidden in the registry office. However, without specific evidence, it is safer to stick to proven facts: there was use of false or invalid public documents to support charges—e.g., minutes and conventions filed in a registry office giving the impression of a regular condominium, when in reality there was no registration of a legal entity in the Civil Registry and no municipal approval of a condominium.
This mismatch proves the falsity: the blog produced a negative certificate from the Civil Registry of Legal Entities attesting that no legal entity called “Condomínio Residencial da Gleba 8-D em Comary” ever existed, and concludes that false statements were being made in court to simulate legitimacy. The real estate registry office, if it had rigorously complied with its duties, would never allow such simulation, because it was up to it to require the prior associative registration for any condominium annotation. Facilitating this simulation may indicate fraudulent collusion between registry officials and association leaders—which would configure not only criminal unlawful acts (possible passive corruption if there was undue advantage to the registry officer, or fraud/estelionato against harmed third parties), but certainly a very serious administrative infraction. Notaries and registrars are subject to oversight by the state judiciary; acts of improbity (Law 8.429/92) can also reach them because they are delegated agents. Allowing or failing to correct a registry fraud that harms urban planning order and residents’ individual rights (forced to pay for private services under a false legal label) may be seen as an act of improbity by offense against principles of the administration (especially legality and morality). The Public Prosecutor’s Office, in fact, acts in such cases: the blog reports that in Civil Inquiry 702/07 the MP collected evidence of frauds in the real estate registry, evidencing responsibilities.
Breach of the Registrar’s Functional Duties: Beyond criminal aspects, the real estate registrar likely incurred functional infractions under the Public Records Law and the General Internal Affairs (Corregedoria Geral de Justiça) rules. Under technical rules, the registrar must annotate any judicial decision or relevant fact that alters the legal situation of the property (LRP art. 167, II). Decisions that declared the non-existence of a condominium and the public nature of the roads are mandatorily annotatable titles. Failure to make these annotations means omission in the duty to keep the registry faithful and exact. Such omission violates the principle of publicity and has the potential to mislead third parties, since the registry is a source of trust. As registry doctrine teaches, “the real estate registry must be faithful, exact, precise, and cannot contain errors or flaws that distort it or diminish its probative value.” Administrative accountability of the registrar, in that case, may lead to disciplinary penalty ranging from a warning to loss of the delegation, depending on severity and intent (Law 8.935/94, art. 31). Here, considering that the irregularities benefited a private group to the detriment of the collective interest (maintenance of public goods accessible to all), there is a serious violation of duties. The Municipality of Teresópolis even stated in court that the actions of the “false condominiums” constituted attacks against the public urban planning order. When a registrar collaborates in such attacks—by action or omission—he fails in his function as a guarantor of registry legality. The conduct may also be framed as administrative improbity (for violation of principles and for potentially causing harm to third parties, such as residents whose property rights were devalued due to restrictions illegally imposed by the clandestine “condominium”).
In sum, the Real Estate Registry Office of Teresópolis may have actively participated or, by connivance, in the attempted apparent “legalization” of a non-existent condominium, incurring unlawful acts such as ideological falsehood (by issuing misleading registrations/certificates) and prevarication (by failing to comply with legal duties of correction and publicity for the benefit of the association’s interests). Such facts are corroborated by statements of the MP and the Municipality pointing to frauds confessed in the registry. The registrar’s accountability may occur both in the criminal sphere (for the crimes mentioned) and in the civil-administrative sphere, with intervention by the internal affairs office and the MP to restore the legality of the records.
Legal Provisions and Applicable Case Law
Criminal Legislation: In theory, the following provisions of the Penal Code apply: art. 299 (Ideological Falsehood), which punishes falsification of data in a public document; art. 319 (Prevarication), which punishes the official who diverts his function to satisfy personal interest, failing to comply with the law; and possibly art. 317 (Passive Corruption), if solicitation or receipt of undue advantage by a public authority to practice illegal acts is proven. In addition, Law 13.869/2019 (Abuse of Authority) typifies conduct of judges and public agents who, in the exercise of their function, violate others’ rights and guarantees intentionally—for example, insisting on a manifestly illegal act (such as collection of a non-existent debt) may be seen under the lens of abuse.
Civil/Administrative Legislation: Law 6.015/1973 (Public Records Law) establishes the registrar’s obligations—especially art. 167, II, items 10 and 14, and art. 246, §1, which require the annotation of judicial decisions and changes affecting the property. Failure to comply with these determinations constitutes an administrative infraction and can also generate civil liability for damages caused. Law 8.429/1992 (Administrative Improbity), especially art. 11, reaches acts of public agents (including delegated agents) that offend administrative principles such as honesty, impartiality, legality, and loyalty to institutions—in the hypothesis, both the judge and the registrar, if they acted with intent to circumvent the law, may respond for improbity (subject to sanctions such as loss of office, suspension of political rights, fines, etc.). Law 8.935/1994, which regulates notarial and registry services, provides in art. 31, items I and II, that delegates are subject to oversight and must observe legal duties, incurring serious faults if they breach such duties (which can lead up to loss of the delegation, through an administrative proceeding).
Case Law: Beyond the precedents already mentioned from the STF (RE 695.911) and STJ (REsp 1.280.871/SP, Theme 882) that ensure freedom of non-association and prohibit compulsory charges, it is relevant to cite case law of the TJ-RJ and TRF-2 on the Comary case:
At the state level, the TJ-RJ has issued several decisions recognizing the non-existence of a condominium in Jardim Comary. For example, Civil Appeal No. 0008659-48.2016.8.19.0061, decided on 02/28/2023, confirmed the nullity of condominium charges, declaring the condominium non-existent and the lack of legality of the charge, invoking exactly the theses of the STF and STJ cited above. In that appellate decision, it was emphasized that although there was a registration in the property record and a convention filed, this was done in disagreement with the specific legislation (Law 4.591/64), so no condominium in law was formed. In other words, TJ-RJ itself recognizes that condominium registrations made in disregard of the law have no legal validity. Another decision, from 11/11/2020 (Ap. 0030254-52.2013.8.19.0209), reiterated that association fees are only enforceable against those who voluntarily joined, especially emphasizing that in the concrete case the party did not adhere to the association contract and that fences and access control only arose many years after the subdivision was established—reinforcing the public and open character of the neighborhood.
At the federal level, the judgment of the Federal Judge of Teresópolis dated 04/19/2012 (cases No. 00000245-14.2011.4.02.5115 and 0000247-81.2011.4.02.5115), confirmed by the Federal Regional Court of the 2nd Region (TRF-2), is particularly important. This judgment dismissed the Comary glebas associations’ request to maintain their CNPJs, stating in so many words that the plaintiff collectivities were not condominiums within the meaning of the CPC and Law 4.591/64, nor did they have any valid registered constitutive act. It concluded that they were “societies without legal personality”, mere communions of neighboring owners, and that their conventions filed in a registry office “are not constitutive acts” and “constitute manifest fraud of the law” in attempting to “borrow” a condominium contract of the larger area (original Granja Comary) to justify the late creation of a non-existent condominium. This federal decision, by vehemently denying the condominium nature and ordering cancellation of the CNPJs, served as a basis for the Federal Revenue Service to cancel the associations’ registrations ex officio (as reported, the Central Bank even ordered the closure of bank accounts linked to the false condominium in 2008). In terms of criminal consequences, this federal judgment made “the frauds and the untrustworthiness” of the false condominiums’ acts patent, which provides factual support for potential criminal actions against those responsible for such acts.
A highlight of state case law in criminal/administrative matters involving registry offices is rare, but the described scenario resembles cases of collusion between public agents and private parties to circumvent the law. In this sense, decisions that punish registrars for breaching duties are not frequently published, but notarial doctrine provides that the registrar must be held liable whenever “errors or flaws distort the registry.” In the Comary case, the “flaws” reached such seriousness that the 23rd Civil Chamber of the TJ/RJ, in May 2021, declared it to be ‘the end of the false Comary condominiums’, highlighting that the Municipality proved that all were irregular subdivisions and that all registrations improperly obtained were annulled. This judicial conclusion reinforces the idea that any agent who contributed to maintaining those improper registrations (whether the local judge or the registrar) acted against the law and is subject to consequences.
In conclusion, the legal analysis indicates that there were, in theory, serious irregular practices both by the first-instance judge and by the real estate registry office, in the episode of the “Condomínio” Comary Gleba VI. Such practices may constitute criminal unlawful acts—especially ideological falsehood, prevarication, and abuse of authority—and also functional administrative infractions, including of disciplinary and improbity nature. The final answer on accountability depends on investigation and eventual proceedings, with due process, adversarial proceedings, and full defense ensured. However, the elements gathered (court decisions, prosecutorial opinions, and documented allegations) point to a strong deviation from expected conduct, with legal grounds for punishment of those involved, if intent and awareness of the illegalities are proven. The message from the higher courts is clear: there is no “condominium” where legal basis is lacking, and insisting on this legal fiction, circumventing urban planning laws and individual rights, constitutes not only civil nullity, but also a potential criminal and functional unlawful act by whoever caused this situation.
Legal References: Federal Constitution of 1988, art. 5, items XVII and XX (freedom of association); Civil Code, arts. 45 and 1.314 et seq. (legal personality of associations and condominium in general); Law 4.591/1964 (Condominium Law, requirements for building condominium); Law 6.766/1979 (urban land subdivision); Decree-Law 58/1937 and Decree 3.079/1938 (subdivisions—effective at the time of Jardim Comary’s implementation); Penal Code, arts. 297, 299, 319 and 321; Law 13.869/2019 (Abuse of Authority); Law 8.429/1992 (Administrative Improbity); Law 6.015/1973 (Public Records, especially arts. 167 II and 246); Law 8.935/1994 (Notaries and Registries Law). Case law: STF RE 695.911/SP (Theme 492); STJ REsp 1.280.871/SP (Theme 882); TJ/RJ Ap. 0008659-48.2016 (17th Chamber of Private Law, 02/28/2023); TJ/RJ Ap. 0030254-52.2013 (24th Civil Chamber, 11/11/2020); TJ/RJ AgIn 0039332-95.2025 (4th Chamber of Private Law, decided 07/22/2025); TJ/RJ AgIn 0091359-55.2025 (4th Chamber of Private Law, decided 12/09/2025); TRF-2, AC 00000245-14.2011.4.02.5115 / 0000247-81.2011.4.02.5115 (2012 decision) – among others cited in the text.
