{"id":7300,"date":"2026-05-15T09:07:31","date_gmt":"2026-05-15T12:07:31","guid":{"rendered":"https:\/\/marinsbertoldi.com.br\/?p=7300"},"modified":"2026-05-15T09:07:31","modified_gmt":"2026-05-15T12:07:31","slug":"the-marco-legal-das-garantias-and-real-estate-auctions-limits-on-foreclosure-sales-at-grossly-inadequate-prices-according-to-the-superior-tribunal-de-justica-and-impacts-on-the-construction-industry","status":"publish","type":"post","link":"https:\/\/marinsbertoldi.com.br\/en\/the-marco-legal-das-garantias-and-real-estate-auctions-limits-on-foreclosure-sales-at-grossly-inadequate-prices-according-to-the-superior-tribunal-de-justica-and-impacts-on-the-construction-industry\/","title":{"rendered":"The Marco Legal das Garantias and Real Estate Auctions: Limits on Foreclosure Sales at Grossly Inadequate Prices According to the Superior Tribunal de Justi\u00e7a and Impacts on the Construction Industry"},"content":{"rendered":"\n

By Eduardo Cramer Ono<\/strong>

Law No. 14,711\/2023, known as the Legal Framework for Guarantees, introduced significant changes to the legal regime governing credit and guarantees in Brazil, with the stated objective of providing greater efficiency, predictability, and legal certainty to financing transactions.<\/p>\n\n\n\n

Since its enactment, however, the new statute has been cited in certain court decisions as grounds for recognizing the invalidity of foreclosure sales of real estate conducted for less than half of the appraised value of the property. This interpretation tends to extend its effects to mortgage foreclosures as well, pursuant to Article 9, Paragraph 6, of Law No. 14,711\/2023.<\/p>\n\n\n\n

In the judgment of REsp No. 2.096.465, the Third Panel held that \u201cas of the entry into force of Law No. 14,711\/2023, there is no longer any doubt that, in a second auction, a bid lower than half of the appraised value of the property cannot be accepted, even if it exceeds the amount of the debt (plus other expenses), similarly to the rule set forth in Article 891 of the Brazilian Code of Civil Procedure of 2015.\u201d According to the panel, one of the purposes of the legislative amendment was precisely to end the controversy regarding the applicability, to fiduciary transfers of real estate, of rules prohibiting sales at grossly inadequate prices, an objective that would have been achieved through the new wording given to Paragraph 2 of Article 27 of Law No. 9,514\/1997.<\/p>\n\n\n\n

Depending on the circumstances of the specific case, the above-mentioned judicial interpretation may increase the minimum sale price of properties in second auctions, thereby increasing the likelihood that no successful bid will be made. As a consequence, unsold properties will become part of the fiduciary creditor\u2019s assets, who will then be responsible for propter rem obligations and other costs inherent to ownership.<\/p>\n\n\n\n

In the case of developers that finance the balance of purchase and sale agreements through the creation of fiduciary transfers, the judicial interpretation has a significant impact, since fewer properties will be successfully auctioned and more assets will return to their inventory, generating costs and putting downward pressure on prices. In addition, for developers and the market in general, the risk associated with granting credit increases, which may also lead to higher interest rates, affecting the entire real estate market.<\/p>\n\n\n\n

But \u201cthere is light at the end of the tunnel.\u201d This is because a systematic interpretation of the legislation allows for a conclusion different from that adopted by the STJ.<\/p>\n\n\n\n

Initially, it is important to note that Law No. 14,711\/2023 established a specific set of rules for the enforcement of fiduciary guarantees in financings intended for the acquisition or construction of residential properties. In this context, Article 26-A, Paragraph 3, of Law No. 9,514\/1997 now provides that, in the second auction, the highest bid offered shall be accepted, provided that it is equal to or greater than the full amount of the debt secured by the oldest fiduciary transfer registered over the property, plus expenses, insurance premiums, legal charges, taxes, and condominium fees.<\/p>\n\n\n\n

On the other hand, when regulating the enforcement of fiduciary transfers in other types of transactions, Article 27, Paragraph 2, of Law No. 9,514\/1997 established that \u201cin the second auction, the highest bid offered shall be accepted, provided that it is equal to or greater than the full amount of the debt secured by the fiduciary transfer, expenses, including notarial fees, insurance premiums, legal charges, including taxes, and condominium fees, and, if there is no bid reaching such amount, the fiduciary creditor may, at its sole discretion, accept a bid corresponding to at least half of the appraised value of the property.\u201d<\/p>\n\n\n\n

The wording of the law therefore indicates the granting of discretion to the creditor, which may only be exercised in the event that no bid reaches the amount of the debt (plus expenses and charges), rather than imposing an absolute minimum threshold for the auction sale. This interpretation is reinforced by Paragraph 5-A of Article 27 of Law No. 9,514\/1997, which expressly provides that if the proceeds of the auction are insufficient to fully pay the debt, expenses, and charges, the debtor shall remain liable for the outstanding balance, which may be collected through enforcement proceedings or through the enforcement of other guarantees securing the debt. If the legislator had intended to establish, in general terms, a minimum auction threshold corresponding to 50% of the appraised value of the property \u2014 even when exceeding the amount of the debt \u2014 there would theoretically be no circumstance in which this provision would apply.<\/p>\n\n\n\n

The legislative history of Bill No. 4,188\/2021 (which became Law No. 14,711\/2023) further supports this conclusion. A comparison between the original wording of the bill and the approved text demonstrates that Congress deliberately rejected the proposal to tie the minimum auction value, in all cases, to half of the property\u2019s value, opting instead for a more flexible solution aligned with the economic rationale of credit recovery:<\/p>\n\n\n\n

Original Wording of Bill No. 4,188\/2021<\/th>Approved Wording<\/th><\/tr><\/thead>
Article 26-A. (…) Paragraph 3. In the second auction, the highest bid offered shall be accepted provided that it is equal to or greater than the full amount of the debt, expenses, insurance premiums, legal charges, including taxes, and condominium fees, or corresponds to fifty percent of the property value, as established pursuant to item VI of the caput and sole paragraph of Article 24, whichever is greater.<\/td>Article 26-A. (…) Paragraph 3. In the second auction, the highest bid offered shall be accepted provided that it is equal to or greater than the full amount of the debt secured by the oldest fiduciary transfer registered over the property, expenses, including notarial fees, insurance premiums, legal charges, including taxes, and condominium fees.<\/td><\/tr>
Article 27. (…) Paragraph 2. In the second auction, the highest bid offered shall be accepted, provided that it is equal to or greater than fifty percent of the property value referred to in Paragraph 1.<\/td>Article 27. (…) Paragraph 2. In the second auction, the highest bid offered shall be accepted, provided that it is equal to or greater than the full amount of the debt secured by the fiduciary transfer, expenses, including notarial fees, insurance premiums, legal charges, including taxes, and condominium fees, and, if there is no bid reaching such amount, the fiduciary creditor may, at its sole discretion, accept a bid corresponding to at least half of the appraised value of the property.<\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n

This reasoning has already been adopted by the STJ itself in other contexts. When judging REsp No. 2.106.548-SP (mentioned in a previous publication), concerning the prevalence of the Consumer Defense Code over Law No. 13.786\/2018 (the \u201cDistratos Law\u201d), Justice Nancy Andrighi highlighted the removal, during the legislative process, of a provision stating that the Consumer Defense Code would apply only subsidiarily, thereby indicating that the legislator intended to preserve the prevalence of consumer protection rules over the Distratos Law. The same logic, if applied to the matter examined herein, would lead to the conclusion that there was no legislative intent to impose a universal minimum threshold of 50% of the appraised value for all forms of enforcement of fiduciary guarantees.<\/p>\n\n\n\n

Furthermore, the interpretation adopted by the Third Panel may generate practical consequences that, paradoxically, harm the fiduciary debtor itself. This is because, under Article 27 of Law No. 9,514\/1997, the failure of the second auction results in the extinguishment of the debt, with reciprocal discharge, and the consolidation of full ownership and free disposal of the property in favor of the fiduciary creditor, without any obligation to return a possible surplus value.<\/p>\n\n\n\n

An example illustrates the issue: suppose the outstanding debt amounts to BRL 100,000.00 and the property taken to auction is appraised at BRL 1,000,000.00, while, in the second auction, the highest bid reaches BRL 400,000.00. If the sale were allowed, the fiduciary creditor would have to remit to the debtor the surplus amount of BRL 300,000.00. However, if the understanding prevails that the sale cannot occur for less than half of the appraised value, the second auction would fail, the debt would be deemed extinguished, and the creditor would become free to dispose of the property, while the debtor would lose any rights over it, without receiving any reimbursement whatsoever.<\/p>\n\n\n\n

In light of this scenario, heightened caution is recommended for market participants in the real estate sector, as well as individuals and legal entities opting to create mortgages and fiduciary transfers. The evolution of the case law on the matter should be closely monitored, and it would be desirable for the STJ to revisit and standardize its interpretation, in order to preserve legal certainty, the coherence of the legal system, and the proper allocation of risks in transactions governed by Law No. 9,514\/1997.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Eduardo Cramer Ono Law No. 14,711\/2023, known as the Legal Framework for Guarantees, introduced significant changes to the legal […]<\/p>\n","protected":false},"author":3,"featured_media":7297,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"wds_primary_category":646,"footnotes":""},"categories":[646],"tags":[150,137],"class_list":["post-7300","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-articles","tag-contratos","tag-imobiliario"],"_links":{"self":[{"href":"https:\/\/marinsbertoldi.com.br\/en\/wp-json\/wp\/v2\/posts\/7300","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/marinsbertoldi.com.br\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/marinsbertoldi.com.br\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/marinsbertoldi.com.br\/en\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/marinsbertoldi.com.br\/en\/wp-json\/wp\/v2\/comments?post=7300"}],"version-history":[{"count":0,"href":"https:\/\/marinsbertoldi.com.br\/en\/wp-json\/wp\/v2\/posts\/7300\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/marinsbertoldi.com.br\/en\/wp-json\/wp\/v2\/media\/7297"}],"wp:attachment":[{"href":"https:\/\/marinsbertoldi.com.br\/en\/wp-json\/wp\/v2\/media?parent=7300"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/marinsbertoldi.com.br\/en\/wp-json\/wp\/v2\/categories?post=7300"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/marinsbertoldi.com.br\/en\/wp-json\/wp\/v2\/tags?post=7300"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}