Protection of the lessee's rights in case of disposal of leased property

September / 2018

In recent years, due to various economic and even cultural factors, there was a significant increase in the number of people who, in their search for property for residential or commercial purposes, opt for leasing instead purchase a real property. This increase in the number of leases entered into, however, was not accompanied by a consequent increase in the number of records of contracts of this nature before the competent Real Estate Registries.

This is due to the lack of knowledge of the parties involved regarding the benefits and consequences of this type of registration in the leased Property’ record.

For renters, the registration of the lease in the Property’ record is especially important with regard to the protection of their rights in case of sale of the Property to third parties.

In cases of leasing for commercial purposes, for example, the continuity of the commercial establishment in a certain location is extremely important factor for the success of the business, so that any sale of the leased Property to third parties and termination of the lease - considering the non-exercise of the preemptive right by the lessee and the termination of the contract by the acquirer - can be extremely harmful.

In this sense, the provisions of art. 8 of Law 8.245/1991 (Leasing Law) which determines that: “If the property be disposed during the lease, the acquirer may terminate the contract, with a period of ninety days for vacating the Property, unless the lease be for a determined period and the contract contains a clause of validity in case of sale and be registered in Property’ record”.

It should be noted, therefore, that the lessee, when concluding a leasing contract, must pay attention to 03 (three) main issues, necessary to protect the lessee if the property be disposal/sold to a third party:

·         Provision of validity for a determined term;

·         Provision of maintenance of the Contract in case of sale to third parties; and

·         Registration of the Contract in the Property’ record.

Once these three conditions have been fulfilled, the existence of the lease agreement can not be claimed - since, after registration, will be of public knowledge - obliging the acquirer to respect the contract until the deadline stipulated by the parties, providing greater legal certainty to those involved.

Vernalha, Di Lascio, Mesquita & Associados is at your disposal for any further questions.