The Jurisprudential Evolution of the Exception to the Non-Seizability of the Family Property in Lease Agreements: An Analysis before the Superior Courts

Abstract

This paper aims to analyze the jurisprudential evolution of the exception to the unseizability of the family home in lease contracts, with emphasis on the interpretation of the Brazilian higher courts — the Federal Supreme Court (STF) and the Superior Court of Justice (STJ) — especially after the establishment of the thesis in Theme 1127. The research focuses on the distinction between the types of lease guarantees, particularly surety (fiança), the object of STF decisions, and security deposit (caução), the focus of STJ’s understanding, observing how these rulings influence the real estate market and contractual relations. To this end, it adopts a qualitative, descriptive, and exploratory approach, using the deductive method through jurisprudential, legislative, and doctrinal analysis. The study contextualizes the social function of housing and the constitutional principles of human dignity, legal certainty, and private autonomy. It concludes that, although there is no direct conflict between the theses established by the higher courts, the lack of legislative standardization and the overlap of interpretations generate legal uncertainty, directly affecting guarantors, lessors, and lessees, as well as the balance of contractual relations. Finally, it suggests normative harmonization and legislative improvement as a means to ensure greater predictability and protection of fundamental rights.