The resources were interposed by owners who have collected maintenance rates relating to their units and services made available to all, although they did not integrate residents' associations.
At first instance, the owners had been convicted to pay the amounts claimed by their associations. The Court of Justice of the State of São Paulo had confirmed the conviction, stating that the monthly contribution is compulsory, regardless of whether or not the resident is associated, since the services provided are common use and benefit to all.
In the upper Court of Justice, the right of free association (raised by the owners) and the seal for the unlawful enrichment of the owner (raised by the Association), culminating in the prevalence of the first to judge the collection actions were confronted. According to Minister Marco Buzzi, the analysis of possible breach to the principle of unsuccessful enrichment, in cases judged, must be made in the light of the fundamental guarantee of associative freedom.
The subject gains significant importance to the extent that the organization and collection of common use services via the association of residents is the main solution found to enable the operation of so-called "closed allotments" in the real estate market. The "closed allotment" is an alternative that comes, especially on the outskirts of large cities, in order to decongest the metropolis. However, there is still no specific federal legislation that Orient its training. Nothing prevents municipalities from editing local urban standards appropriate to these allotments, but, while this does not occur, common services are being regulated normally via residents' associations.
With the recent decisions of the STJ, it is advisable that this solution is revised because the thesis signed by the Court should guide the solution of the identical cases. It will be appealed to STJ only when the second instance decision is contrary to the understanding signed in these repetitive.
