Organização de Gestão Condominial Edilícia: reflexões contemporâneas sobre a personalidade jurídica dos condomínios edilícios no direito civil brasileiro

Abstract

Inspired by the approval of the Legislative Bill n. 3.461/2019 in the Federal Senate, the present thesis engages to revisit the endless debate about the legal personality of building condominiums, under the lenses of constitutional-civil law. Through a systematic perusal of the Brazilian legal order, the two primary chapters will investigate historical progress, general attributes, and the variety of fattispecies concerning the classic matters that star in the subject of this research. From one side, the analysis of the building condominiums – which includes concepts of the construction stage, clusters of plots, multi properties, “super condominiums”, and the simple urban type in Law 13.465/17 – will demonstrate its distinction before other concepts which transience (bankruptcy and death estates) or operational issues (silent partnerships and investment funds) render their lack of personality justifiable. The contrast will highlight that the locus of the community of proprietors of real estate units is not among the depersonalized entities. The exposition will also encompass the insufficiency of the procedural capacity, unattended by subjectivity in material law, to grant the legal support needed by the plexus of actions that the condominium collectivity in buildings performs in the contemporary business traffic. On the other side, the examination of the legal personality will entail its dissociation from other correlated concepts but with lower reach (capacity, legitimacy, subjectivity, patrimony, and universalities). In addition, the study will present some considerations about the binary system of persons adopted in the Brazilian legal order, comprised of the broadest personality of the individuals and the tempered subjectivity of legal entities. Once emphasized the main elements of the paramount matters, chapter 3 will expatiate some basic premises, which assimilation is crucial for a lector to weave his attitude of acceptance or, at least, reasoned refusal, to the personification project. It is a tripod comprised of the demarcation of the subject over which the personality shall incur, the barriers claimed for declining the theory, and cases of operations performed by building condominiums in the present legal-social context. Endorsed on this background, the following chapter brings arguments in favor of the personalization of the single body of common interests formed by the organization of owners of real estate units. The considerations drink from doctrine (with a spotlight on Statements 90 and 246 of the CJF’s Civil Law Journeys), as much as from the jurisprudence, and embrace several nuances: as of re-interpretation of affectio societatis to effective advantages, without prejudice to hermeneutical points and comparison to the basic structure of legal entities. In attention to Lenin’s advice, which means theory without practice is worthless, the last chapter exploits the vices and virtues of three models designed to shape a legal personality for building condominiums. Among unattainable, incompatible, and insecure formulas, emerges an answer: the creation, by lege ferenda, of an adjectival legal entity concerning the community of co-proprietors, with a unique technical name, to preserve the property right safe. With permission of Chico Science, no chaos or mud, because the objective is to organize without disorganizing.