Post by account_disabled on Mar 13, 2024 3:11:00 GMT -5
Approved by the Senate this Friday (3/4), Bill 1,179/2020, which temporarily suspends rules of Private Law while the coronavirus epidemic in Brazil lasts, protects, albeit insufficiently, renters at a time when that they will be more financially fragile. On the other hand, it unduly interferes in relationships between individuals and harms landlords. This is what experts consulted by ConJur assess .
The PL prohibits, until December 31, 2020, an eviction injunction in actions filed after March 20, the date established as the starting point of the pandemic in the country.
Bianca Tavolari , professor at Insper and researcher at the Law and Democracy Center at the Brazilian Center for Analysis and Planning, praises the prohibition of eviction injunctions, but believes that, in a crisis scenario such as that caused by the coronavirus pandemic, it would also be necessary to suspend sentences of the type.
“The ban on eviction injunctions is a very important measure. Law 8,245/1991 provides, in article 59, that the injunction in eviction actions must be granted within 15 days, regardless of a B2B Lead hearing to hear the opposing party. It is a very quick procedure, the consequence of which is immediate eviction. Suspending the granting of injunctions is essential so that people can remain in their homes amid the pandemic. However, faced with a scenario like this, it would be necessary to suspend not only the injunctions, but also the sentences. Displacing people at this time, even if not so quickly, is contributing to the intensification of social inequalities that were torn apart by the pandemic”, he assesses.
The professor believes that the suspension of eviction injunctions should not only apply to actions filed from March 20th, but to all processes that were in progress on that date. Bianca believes that repossession actions should also be halted for as long as the state of public calamity lasts in the country.
On the other hand, lawyer Ulisses César Martins de Sousa , partner at Ulisses Sousa Advogados Associados, understands that, by seeking to protect renters, PL 1,179/2020 could end up harming landlords.
“The project is based on the premise that the property owner has a privileged legal position in relation to the tenant. However, this is not always the reality. In many cases, rent is the main source of income for some families. Are these families not also worthy of state attention and protection?”
Along these lines, Rodrigo Ferrari Iaquinta , coordinating partner of the Real Estate Law Department at BNZ Advogados, believes that the project unbalanced the relationship between landlord and tenant, as it suspended eviction injunctions without proving the cause and consequence relationship between the coronavirus pandemic and contractual breaches. “The lease is always a bilateral contract and the interests of both parties must be considered.”
“It is clear that the PL has good intentions, but it is reckless, and deserves caution, when the State starts to interfere in a more invasive way in private relations. The legal system itself already has institutes and elements applicable to the moment of crisis we are experiencing. Over-regulating can create obstacles to social and private relationships”, says Iaquinta.
Carolina Xavier da Silveira Moreira , partner in the litigation area at Costa Tavares Paes Advogados, thinks that this imbalance can still be overcome. "In Argentina, the suspension of rental payments and eviction is the rule, but there is an exception: if the rental is important to supplement the elderly's income, the amount must be paid. I think this grain of salt is important, because you can't just look at the tenant's side. So, perhaps some mitigating rule is needed to address this issue."
Prescription and expiry
PL 1,179/2020 prevents or suspends the prescriptive and expiry periods from the law's effective date until October 30th. The rule does not apply while the specific hypotheses of impediment, suspension and interruption of prescription periods provided for in the legal system continue.
Ulisses Sousa praises the measure. “Both prescription and expiry give rise to the extinction of a right as a result of the inertia of its holder. Talking about the inertia of the holder of a right, at a time when people are deprived of the possibility of freely exercising daily tasks, and even the Judiciary has restrictions on its functioning, would be meaningless. It would deny the idea that the right is made to be realized.”
The PL prohibits, until December 31, 2020, an eviction injunction in actions filed after March 20, the date established as the starting point of the pandemic in the country.
Bianca Tavolari , professor at Insper and researcher at the Law and Democracy Center at the Brazilian Center for Analysis and Planning, praises the prohibition of eviction injunctions, but believes that, in a crisis scenario such as that caused by the coronavirus pandemic, it would also be necessary to suspend sentences of the type.
“The ban on eviction injunctions is a very important measure. Law 8,245/1991 provides, in article 59, that the injunction in eviction actions must be granted within 15 days, regardless of a B2B Lead hearing to hear the opposing party. It is a very quick procedure, the consequence of which is immediate eviction. Suspending the granting of injunctions is essential so that people can remain in their homes amid the pandemic. However, faced with a scenario like this, it would be necessary to suspend not only the injunctions, but also the sentences. Displacing people at this time, even if not so quickly, is contributing to the intensification of social inequalities that were torn apart by the pandemic”, he assesses.
The professor believes that the suspension of eviction injunctions should not only apply to actions filed from March 20th, but to all processes that were in progress on that date. Bianca believes that repossession actions should also be halted for as long as the state of public calamity lasts in the country.
On the other hand, lawyer Ulisses César Martins de Sousa , partner at Ulisses Sousa Advogados Associados, understands that, by seeking to protect renters, PL 1,179/2020 could end up harming landlords.
“The project is based on the premise that the property owner has a privileged legal position in relation to the tenant. However, this is not always the reality. In many cases, rent is the main source of income for some families. Are these families not also worthy of state attention and protection?”
Along these lines, Rodrigo Ferrari Iaquinta , coordinating partner of the Real Estate Law Department at BNZ Advogados, believes that the project unbalanced the relationship between landlord and tenant, as it suspended eviction injunctions without proving the cause and consequence relationship between the coronavirus pandemic and contractual breaches. “The lease is always a bilateral contract and the interests of both parties must be considered.”
“It is clear that the PL has good intentions, but it is reckless, and deserves caution, when the State starts to interfere in a more invasive way in private relations. The legal system itself already has institutes and elements applicable to the moment of crisis we are experiencing. Over-regulating can create obstacles to social and private relationships”, says Iaquinta.
Carolina Xavier da Silveira Moreira , partner in the litigation area at Costa Tavares Paes Advogados, thinks that this imbalance can still be overcome. "In Argentina, the suspension of rental payments and eviction is the rule, but there is an exception: if the rental is important to supplement the elderly's income, the amount must be paid. I think this grain of salt is important, because you can't just look at the tenant's side. So, perhaps some mitigating rule is needed to address this issue."
Prescription and expiry
PL 1,179/2020 prevents or suspends the prescriptive and expiry periods from the law's effective date until October 30th. The rule does not apply while the specific hypotheses of impediment, suspension and interruption of prescription periods provided for in the legal system continue.
Ulisses Sousa praises the measure. “Both prescription and expiry give rise to the extinction of a right as a result of the inertia of its holder. Talking about the inertia of the holder of a right, at a time when people are deprived of the possibility of freely exercising daily tasks, and even the Judiciary has restrictions on its functioning, would be meaningless. It would deny the idea that the right is made to be realized.”