Direito - 11/05/2017

Como retirar o inquilino inadimplente do imóvel



Uma das principais razões legais para que o locatário seja despejado do imóvel locado consiste na falta de pagamento de aluguel, sendo a Ação de Despejo a medida judicial adequada para esse caso, tendo fundamentação legal o artigo 62 da Lei de Locação (Lei nº 8.245/91).

É importante destacar que na Ação de Despejo por falta de pagamento de aluguéis e acessórios da locação há algumas peculiaridades, uma vez que possui suas regras próprias, vejamos:


•O primeiro ponto é que o pedido de rescisão do Contrato de Locação poderá ser cumulado com o pedido de cobrança de aluguéis, e demais acessórios da locação, bem como com o despejo. Para tanto, na oportunidade de distribuição da Ação, deverá ser juntado o cálculo discriminado e devidamente atualizado do débito e apontado os fatos e fundamentos jurídicos para os demais pedidos.

A vantagem dessa junção é que em uma única ação é possível DESPEJAR o locatário e COBRAR todos os prejuízos, inclusive aqueles que se vencerem no curso do processo.

Caso seja realizado o referido pedido de cobrança, o fiador também responderá por ele juntamente com o locatário (deve ser incluído no polo passivo);

Devemos apontar ainda que após o ajuizamento da Ação de Despejo, há a possibilidade do fiador ou locatário EVITAR o despejo e, por consequência, a rescisão do contrato de locação.

Para tanto, qualquer dos dois deverá proceder com o DEPÓSITO em juízo do débito atualizado (isto é, dos valores cobrados em atraso), no prazo de 15 (quinze) dias a contar da citação. Ou seja, o inquilino deve PAGAR tudo que está sendo cobrado para evitar ser despejado.

Deve estar incluído nesse depósito: aluguéis, acessórios da locação (contas de consumo, IPTU), multas, penalidades contratuais, juros de mora, custas judiciais e honorários do advogado do locador (tais valores dependerão do conteúdo do contrato de locação e dos pedidos feitos na Petição Inicial da Ação proposta);

Sobre o depósito acima mencionado, destacamos que o LOCADOR será devidamente intimado e, caso tenha sido depositado um valor menor do que o efetivamente devido, ao locatário e fiador será concedido o prazo de 10 (dez) para depositar em complementação.

Exemplo: caso tenha sido cobrado na Ação de Despejo o valor de 02 meses de aluguel, vencidos e não pagos pelo locatário, e o locatário efetuar o depósito judicial de apenas 01 (um) mês, dentro do referido prazo de 10 (dez) dias, ele poderá complementar o depósito, pagando o outro mês;

Com finalidade de evitar abuso de direito, o LOCATÁRIO/FIADOR só poderá realizar essa complementação dos valores devidos se ele não tiver utilizado desse procedimento nos últimos 24 (vinte e quatro) meses anteriores à propositura da Ação de Despejo.

Essa restrição também é aplicada no caso de concessão de medida liminar de despejo por falta de pagamento de aluguel e acessórios, como será a seguir ventilado.



•Falaremos agora da medida mais rápida para retirar o LOCATÁRIO inadimplente de um imóvel:

Merece destaque a possibilidade de pleitear a concessão de MEDIDA LIMINAR para que ocorra a desocupação do imóvel em 15 (quinze) dias, independente de audiência da parte contrária, conforme previsto no artigo 59, inciso IX, da Lei de Locação (Lei 8.245/91).

Mas é imprescindível se atentar aos requisitos que devem ser preenchidos para que haja a concessão da referida medida liminar, quais sejam:

No contrato de locação não deve estar prevista nenhuma modalidade de garantia, conforme prevê o artigo 37 da Lei de Locação, e
Deverá ser prestada caução pelo LOCADOR no valor equivalente a 03 (três) meses de aluguel.
Nesse caso de concessão de liminar também será dada a oportunidade do locatário evitar a desocupação do imóvel e, por consequência, a rescisão contratual, se esse efetuar o depósito judicial da totalidade do valor devido, desde que dentro do prazo de 15 (quinze) dias para a desocupação.

Todavia, como mencionamos, trata-se da maneira mais rápida de ter a resposta jurisdicional.

Exemplificamos: O LOCATÁRIO não paga o aluguel a 03 meses. No contrato de locação não existe nenhuma modalidade de garantia (fiança, caução, etc). Nesse caso, o LOCADOR poderá propor Ação Judicial cobrando os valores em atraso, bem como as multas e juros pactuados, e se quiser poderá requerer MEDIDA LIMINAR, realizando um depósito judicial no valor de 03 alugueis, que serão devolvidos ao final da Ação. Concedida a liminar, o LOCATÁRIO terá 15 dias para sair do imóvel ou pagar TODOS os valores devidos
Nos demais casos em que não estiverem presentes os requisitos para se pleitear a medida liminar para uma desocupação mais célere ou o locador simplesmente não optar por essa medida, por ser onerosa, a Ação de Despejo será julgada pelo Juiz, após ser ouvido o LOCATÁRIO, e, caso seja procedente, será concedido o prazo de 30 (trinta) dias para a desocupação voluntária.


Poderá ser fixado o prazo de 15 (quinze) dias para essa desocupação voluntária, excepcionalmente, nos seguintes casos:

Se entre a data da citação e a sentença tiver decorrido mais de quatro meses (bastante provável), ou
Nos casos previstos nos artigos 9º e 46, § 2º da Lei de Locação (Lei 8.245/91)

Art. 9º A locação também poderá ser desfeita: I - por mútuo acordo;II - em decorrência da prática de infração legal ou contratual; III - em decorrência da falta de pagamento do aluguel e demais encargos; IV - para a realização de reparações urgentes determinadas pelo Poder Público, que não possam ser normalmente executadas com a permanência do locatário no imóvel ou, podendo, ele se recuse a consenti-las.

Art. 46. Nas locações ajustadas por escrito e por prazo igual ou superior a trinta meses, a resolução do contrato ocorrerá findo o prazo estipulado, independentemente de notificação ou aviso. § 2º Ocorrendo a prorrogação, o locador poderá denunciar o contrato a qualquer tempo, concedido o prazo de trinta dias para desocupação.

Uma vez terminado o prazo para a desocupação voluntária e o LOCATÁRIO ainda permanecer no imóvel, será efetuado o DESPEJO, inclusive com o emprego de força, mediante arrombamento, se for necessário.

Ressaltamos que mesmo com o DESPEJO, o LOCATÁRIO continua obrigado a pagar todos os prejuízos do LOCADOR, inclusive custas processuais, prosseguindo a Ação em relação aos valores pleiteados, somando-se os valores até a efetiva desocupação do imóvel.

Exemplo: Ajuizada a Ação de Despejo, o LOCATÁRIO permanece no imóvel por mais 04 meses. Assim, nos valores cobrados serão inclusos mais 04 meses de aluguel.
Por fim, cumpre salientar que em todos os casos acima mencionados é importante a consulta e acompanhamento por um Advogado atuante na área do Direito Imobiliário, profissional esse que poderá buscar a melhor solução para cada caso, mesmo porque cada caso concreto terá suas peculiaridades a depender do pactuado no contrato de locação.

Respondendo as perguntas iniciais, o LOCADOR não ficará no prejuízo. O procedimento adequado é a Ação de Despejo cumulado com Cobrança de Alugueis e Acessórios. O prazo para desocupação vai depender das peculiaridades do contrato de locação.

Texto produzido por Carlos Eduardo Borges de Freitas Filho, OAB/SP 343.251.

Fonte: JusBrasil


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