Bem de família: how the family home is protected in Brazil

The automatic protection (Lei 8.009)

What is covered. The property “on which the building, the plantations and improvements of any kind stand”, and all equipment, including professional equipment, and the furniture in the house, provided they are paid for (article 1, single paragraph). Vehicles, works of art and luxurious ornaments are excluded (article 2). For a rented home, the protection applies to the tenant’s own paid-up furniture (article 2, single paragraph).

Which property. Only one property used by the couple or family for permanent residence counts (article 5). If they use several as residences, the protection falls on the cheapest, unless another was registered for this purpose at the property registry under the Civil Code (article 5, single paragraph). For a rural property, protection is limited to the dwelling and its movables, and to the area set as a small rural holding where the Constitution applies (article 4, paragraph 2). The law speaks of “couple or family entity”; how it applies to a person living alone is a question for a lawyer, and Payotte read no court decision on it.

Against whom it works. It can be raised in any enforcement, civil, tax, social-security, labour or other, except in the cases of article 3.

The exceptions (article 3)

The protection does not apply to a claim brought:

1. by the lender of the financing used to build or buy the property, up to the debt created by that contract;
2. by the creditor of alimony, protecting the co-owner who is a spouse or partner of the debtor, in the cases where both are liable;
3. for property tax, taxes and charges due on the family property, which includes the IPTU and condominium charges (see condominium fees);
4. to enforce a mortgage that the couple or family gave on the property;
5. because the property was bought with the proceeds of a crime, or to enforce a criminal judgment for compensation, damages or forfeiture;
6. for an obligation arising from a guarantee given in a lease contract (article 3, VII).

The old exception for domestic employees’ claims (item I) was repealed by Complementary Law 150/2015. Article 4 also removes protection from someone who, knowing they are insolvent, buys a more valuable home in bad faith to move into; the judge may transfer the protection back to the earlier home or cancel the sale.

The lease-guarantor trap

Item VII is the one that most often surprises foreign residents: if you act as guarantor (fiador) of a lease, a landlord’s claim can reach your own family home. If you are asked to guarantee a friend’s or relative’s rent, treat it as a risk to the home. For the guarantee types, see rental guarantees.

The voluntary bem de família (Civil Code)

The spouses or the family entity may, by public deed or will, set aside part of their assets, up to one third of the net assets existing at the time of the creation, as bem de família (article 1.711). A third party may do so by will or gift if the beneficiaries expressly accept it. It may include a home with its accessories, and also securities whose income goes to maintain the property and the family (article 1.712). It is created by registering the title at the property registry (article 1.714).

The effect: the property is exempt from execution for debts after its creation, except those from taxes on the property or condominium charges (article 1.715). It lasts while either spouse lives, or until the children reach majority if there are no spouses (article 1.716). It cannot be given another use or sold without the consent of those concerned and the public prosecutor (article 1.717). The voluntary form is mainly of use when you own several properties and want to protect a particular one, since registration is what allows you to choose a property other than the cheapest, under Lei 8.009, article 5.

Why this matters to a foreign owner or buyer

• Buying with a loan. Lei 8.009 does not stop the lender that financed the purchase; see mortgage default and foreclosure.
• Owning several properties. If the family uses more than one as a residence, the protection falls on the cheapest unless another was registered for this purpose (article 5, single paragraph). A person who wants to protect a different property should talk to a lawyer about the voluntary form.
• Residence matters. The law protects the property used by the couple or family “for permanent residence” (article 5). A holiday home that is not the permanent residence is not covered on those terms.

Which professional to consult

A lawyer registered with the OAB can tell you whether your home is protected against a particular creditor, and prepare the deed for a voluntary bem de família; see the property lawyer page. A notary prepares the public deed.