The 3rd Panel of the Superior Court of Justice (STJ) unanimously ruled that it is possible to recognize the impenhorability of a property used as a family residence even when the mortgage was established prior to the formation of a stable union and the birth of a child.

In the case analyzed, the property was offered as collateral in bank credit transactions at a time when the owner was still single. Subsequently, with the formation of the family unit, the asset began to be used as the residence of the couple and their child. Faced with foreclosure proceedings, the partner and the child invoked the protection afforded by Law No. 8,009/1990.

By overturning the decisions of the lower courts, the STJ emphasized that the protection of the family home is linked to the social function of housing, rather than to the date on which the guarantee was constituted. The Court also highlighted that impenhorability is not absolute and may be relativized if it is proven that the credit obtained was directly used for the benefit of the family unit.

Risks and implications for companies and creditors

The decision brings relevant implications:

• Reduced predictability of real guarantees: the full effectiveness of a mortgage may be challenged even when it has been duly constituted.
• Increased legal risk in real estate credit transactions, especially those involving individuals who may form a family during the term of the contract.
• Potential impact on enforcement and credit recovery proceedings, requiring a reassessment of procedural strategies.
• Exposure to more complex litigation, demanding detailed evidence regarding the use of the property and the allocation of the credit granted.

Strategic solutions and recommendations

In light of this scenario, some measures are essential:

• Mapping the use of the property: in transactions involving real estate collateral, continuously assess whether the asset has, or may come to have, a family residential purpose.
• Review of guarantee agreements: include clauses that address changes in the guarantor’s family status and their effects on the application of Law No. 8,009/1990.
• Enhanced risk due diligence: integrate asset analysis with a legal and contextual assessment of the guarantor’s profile.
• Early evidentiary preparation: in litigation scenarios, structure evidence capable of demonstrating whether the credit granted benefited—or did not benefit—the family unit, a decisive element for the possible relativization of impenhorability.

The decision reinforces the need for strategic legal management, combining contractual analysis, risk governance, and contentious practice aligned with current case law.

PDK continuously monitors the evolution of decisions by higher courts and their impacts on the management of guarantees, contracts, and legal risks. Access other analytical content on the PDK website.