By Eduardo Cramer Ono
Before being provided for in Article 51 and following of Law No. 8.245/1991, the right to renewal of commercial leases was already established in Decree No. 24.150/1934, known as the “Lei de Luvas.” The purpose of such a right has always been to protect the continuity of the tenant’s activities at the commercial location and to prevent undue charges by the landlord, thereby protecting the goodwill, commonly linked to the concept of clientele.
Precisely because of this connection between the concepts of goodwill, protected by the right to renewal, and clientele, the following legal question arose: if the right to a renewal action aims to protect goodwill, would it also serve to ensure the continuation of leases of properties that do not directly serve clientele, such as warehouses leased for the installation of factories and storage facilities?
According to the case law of the Superior Court of Justice, the answer to this question is positive. When judging REsp 1.790.074-SP, the Third Panel of the STJ annulled a decision of the Court of Justice of the State of São Paulo that had recognized that Base Radio Stations (ERBs) do not fall within the concept of goodwill. As decided by the Court, “the applicability of the renewal action is not restricted to the property to which clientele converges, but extends to all properties leased with the purpose of promoting the full development of the business activity, because, ultimately, they contribute to the maintenance or growth of clientele.”
Furthermore, when judging REsp 1.872.262-DF, the Third Panel of the STJ supplemented the understanding established on that occasion, stating that the location intended for the installation of ERBs constitutes goodwill to be protected by the renewal action.
Although these decisions were focused on ERBs, the reasons presented by the STJ seem applicable to the maintenance of lease relationships based on other properties for which there is no convergence of clientele, since what was sought to be protected in the cited judgments was not the value arising from developed clientele, but the importance of the leased property to the activity carried out by the tenant.
It is also important to note that even if the contract provides for a waiver of the right to renewal, if such provision is submitted to the Judiciary, it will likely be considered null, based on Article 45 of Law No. 8.245/1991, which only excepts the right to renewal in shopping center leases and in built-to-suit contracts.
Thus, the right to contractual renewal is a strategic issue for tenants, as it provides them with security for investments made in the properties and for the continuity of their operations, and, for landlords, it is a matter that requires careful planning and significantly impacts the management of their assets. The best approach for both parties is to seek clear and well-structured contracts that balance interests and provide predictability. Specialized legal assistance is essential to build solid agreements that mitigate risks and strengthen commercial relationships in the long term.
