The Superior Tribunal de Justiça (STJ) Fourth Panel has established that Súmula 308/STJ does not apply to contracts involving the fiduciary sale (alienação fiduciária) of real estate. The referenced Súmula, which is directed at specific cases of mortgages within the Housing Finance System (SFH), provides that “a mortgage executed between the construction company and the financial agent, whether prior or subsequent to the signing of the purchase and sale agreement, is not effective against the purchasers of the property.”
In the case at hand, after the construction company transferred a property under a fiduciary sale to a consortium administrator, it subsequently entered into a purchase and sale agreement for the same property with third parties. Following the debtor’s default, ownership was consolidated in favor of the fiduciary creditor, and the purchasers sought to annul the act based on Súmula 308. The Tribunal de Justiça do Rio Grande do Sul (TJRS) upheld the purchasers’ claim.
Upon reversing the judgment, the Reporting Justice, Antonio Carlos Ferreira, emphasized that the logic of fiduciary sale is incompatible with the protection provided under Súmula 308. This is because, while a mortgagor remains the owner of the property and can freely negotiate it, a fiduciant (debtor in fiduciary sale) does not hold ownership, which remains with the fiduciary creditor until the debt is paid in full. Therefore, any promise of sale made by the fiduciant constitutes a legally ineffective act against the true owner of the asset, even if the purchaser acted in good faith.
The Reporting Justice further warned that extending Súmula 308 to fiduciary transactions would create legal uncertainty and increase credit risk, negatively affecting the market and, ultimately, consumers themselves through possible interest rate increases and more restrictive financing conditions.