Uniube+ Direito das Coisas - Semana 13.3

Summary

This lecture explains the concept of the fragmentation of a mortgage in property law. It discusses how a large property can be divided into smaller lots, and how a mortgage can be restructured so that each lot is only responsible for a portion of the debt. The lecturer also covers the process in which the property developer may petition for this restructuring in court, the conditions under which the creditor may oppose, and the potential consequences if the debt is not fully paid. The topic is grounded in the Brazilian Civil Code, specifically Article 1488.

Takeaways

• 😀 The topic discussed is the subdivision of a mortgaged property and its implications.
• 😀 The concept of 'desmembramento' (subdivision) refers to dividing a large mortgaged property into smaller lots while maintaining the original mortgage.
• 😀 The mortgage remains unchanged even after subdivision, but each lot still represents the full amount of the debt.
• 😀 Potential buyers may find it undesirable to purchase a lot if it is associated with a large mortgage that exceeds the lot’s value.
• 😀 Developers (or the debtor) can request a judicial redistribution of the mortgage to ensure each lot represents only a fraction of the debt, which is more attractive to buyers.
• 😀 The creditor can oppose the redistribution only if they can prove that it would harm their guarantee or the security of the mortgage.
• 😀 In the case of a condominium, the mortgage is typically attached to the land and all the apartments built on it, with each apartment initially representing the full debt.
• 😀 When properties like apartments are sold, the debtor may request the redistribution of the mortgage to reduce the amount each apartment is responsible for.
• 😀 If there is no harm to the creditor’s guarantee, the redistribution can proceed, and the mortgage burden on each unit will decrease accordingly.
• 😀 The debtor is responsible for all judicial and administrative costs associated with the redistribution process.
• 😀 If part of the subdivided land is sold and the remaining lots cannot cover the outstanding debt, the developer or their company could still be held liable for the remainder of the debt, even without property security.

Q & A

What is the concept of 'hipoteca desmembrada' (split mortgage)?

A split mortgage refers to the redistribution of a mortgage over a divided property, where each subdivided lot or property is assigned a fraction of the original debt, instead of being liable for the entire debt amount. This process allows for easier sale of individual lots by limiting the liability of each lot to a portion of the mortgage.

Why would a debtor want to split the mortgage on a subdivided property?

A debtor, such as a developer or real estate company, may want to split the mortgage to make individual lots more attractive to buyers. If each lot is only responsible for a fraction of the total debt, potential buyers may be more willing to purchase the lots, as they would not be responsible for the entire mortgage liability.

Can a creditor oppose the split of a mortgage after the property is subdivided?

Yes, a creditor can oppose the split of a mortgage if they can prove that it would decrease the value or security of the mortgage. However, if the subdivision does not negatively impact the creditor’s security, the split may proceed.

What is required for the judicial approval of a mortgage split?

For judicial approval, the debtor must request the split, and the creditor must be notified. The creditor can object if the split would negatively affect the creditor’s guarantee. If the creditor cannot prove any harm, the court will approve the split.

What happens if the creditor claims that the mortgage split will harm their guarantee?

If the creditor can prove that the mortgage split will reduce the security of their guarantee, the court will likely reject the request for the split. The creditor's claim of harm must be substantiated with evidence.

How does the concept of a 'condomínio edilício' (condominium) relate to split mortgages?

In the case of a condominium, where a building is constructed on a previously mortgaged piece of land, each apartment could be individually mortgaged as part of the original mortgage. The debtor may request a split of the mortgage so that each apartment is responsible only for a portion of the debt, rather than the entire amount, making the individual properties more marketable.

What legal basis supports the splitting of a mortgage in Brazil?

The legal basis for the splitting of a mortgage is found in Article 1488 of the Brazilian Civil Code. This article allows for the redistribution of mortgage liabilities when properties are subdivided, provided it does not harm the creditor's security.

Who is responsible for the costs associated with the mortgage split?

The party that requests the mortgage split is responsible for covering all associated costs. Typically, this would be the debtor, who is seeking to restructure the mortgage to facilitate property sales.

What happens if some subdivided lots are sold, but the remaining lots are insufficient to pay the debt?

If some lots are sold and the proceeds are insufficient to cover the remaining debt, the debtor, typically the developer or real estate company, remains liable for the unpaid balance. The bank can pursue the debtor's other assets or even the company’s directors, depending on the situation.

How does the mortgage split affect the value of the creditor’s guarantee?

If the subdivision leads to increased property value, such as through the construction of apartments or improvements, the value of the creditor's guarantee may actually be enhanced. However, each case should be assessed individually to ensure the creditor’s security is not harmed.