Alienação fidunciária residencial e família: análise jurídico econômica do trade-off entre a tutela do crédito e a proteção habitacional

Abstract

Residential real-estate fiduciary transfer has become the primary security arrangement in Brazilian housing finance due to its out-of-court enforcement design, which is faster and more predictable than judicial models. Law No. 14,711/2023 reinforces this approach by improving extrajudicial credit recovery mechanisms, while Law No. 9,514/1997 provides, alongside ownership consolidation and public auctions, the trustor's preemptive right to reacquire the property until the second auction for the outstanding debt amount, thereby mitigating auction-related value losses. Despite these advantages, applying such mechanism to residential property reveals a structural tension between credit protection and housing protection in separation or divorce contexts, where a disconnect often arises among the party bound by the contractual obligation, the occupant who depends on the home, and those who bear the social costs of displacement. From a Law and Economics perspective, the procedural design concentrates informational and initiative advantages on the trustor, whereas the occupying former spouse faces a reduced time window, liquidity constraints, and high transaction costs. This study investigates whether the current regime primarily favors credit protection over housing protection in divorce and separation scenarios and how it affects incentives, transaction costs, and equality of positions between trustor and occupying former spouse. A normative-analytical methodology is adopted, centered on Laws No. 9,514/1997 and No. 14,711/2023, combined with Law and Economics categories and applied to typical family-breakdown cases. The conclusion indicates that the current regime structurally prioritizes credit recovery and that the preemptive right, while relevant, is insufficient to equalize positions when the occupant is not procedurally central. Mitigation measures are proposed to reduce informational asymmetry and improve coordination between extrajudicial enforcement and family disputes without compromising procedural predictability.