Third-Party Claims (Embargos de Terceiro): The Remedy for Anyone Whose Property Is Seized Without Being a Party to the Case

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

When a Brazilian court orders the seizure of property that does not belong to the debtor, the true owner is not left defenseless. Third-party claims (embargos de terceiro) are the procedural tool that lets someone who is not a party to the case defend the possession or ownership affected by the improper seizure and obtain the release of the property, often through a preliminary injunction that suspends the measure immediately.

What third-party claims are and when they apply

Third-party claims are governed by Articles 674 to 681 of the Code of Civil Procedure. They work as a standalone action, although they are linked to the main case. They protect anyone who is subject to a seizure, attachment, sequestration, judicial deposit, or any other judicial restraint on property that the person possesses or in which the person holds a right incompatible with the court order.

The typical situation arises in debt enforcement. The creditor points to a house, a vehicle, or a bank account for attachment, and the order ends up reaching assets that actually belong to someone else. This can happen with property that has already been sold, with a spouse’s marital share, with real estate registered in a third party’s name, or with goods belonging to a company other than the one being sued for the debt.

The central requirement is that the claimant not be a party to the case in which the restraint was ordered. Someone who is already a defendant in the enforcement proceeding has other means of defense, such as the objection to enforcement (embargos à execução) or the challenge to the enforcement of a judgment (impugnação ao cumprimento de sentença). Third-party claims are reserved for those outside the lawsuit who see their property taken by a decision in which they had no part.

Who has standing to file a third-party claim

Article 674 of the Code of Civil Procedure gives standing to anyone who, not being a party to the case, suffers or is threatened with a restraint on property that the person possesses or in which the person holds a right incompatible with the court order. The provision is read broadly and covers both owners and possessors.

The article itself lists situations treated as those of a third party. For this purpose, a spouse or domestic partner who defends possession of separate property or of his or her marital share is considered a third party, except where the debt was incurred for the benefit of the family. The same goes for a buyer of property that was seized under a decision declaring a sale ineffective because it was made in fraud of enforcement.

The courts have also firmly recognized the position of the purchaser under a promise-to-sell contract (promitente comprador). Anyone who signed a purchase and sale commitment, even without registering it, and who holds possession of the property may defend that right through a third-party claim. A creditor holding a security interest in the property, such as a mortgagee or a holder of a fiduciary lien (alienação fiduciária), may also use this tool when the collateral is attached in an enforcement action brought against someone else.

Another important figure is the business partner whose personal assets were reached without a properly opened proceeding to disregard the corporate entity (desconsideração da personalidade jurídica). In that scenario, a third-party claim makes it possible to show that the affected assets are separate from those of the company being sued.

The filing deadline and the risk of losing this remedy

Careful attention to the deadline often separates success from failure in defending the property. Article 675 of the Code of Civil Procedure sets different time limits depending on the stage of the underlying case, and the injured third party must count them carefully.

In a cognitive proceeding (the phase in which the court decides the merits), the claim may be filed at any time before the judgment becomes final and unappealable. In the enforcement of a judgment or in an enforcement proceeding, by contrast, the third party has up to five days after the adjudication, the private sale, or the auction sale, but always before the corresponding deed is signed. Once it is signed, the door to a third-party claim closes.

The Superior Tribunal de Justiça (STJ, Brazil’s high court for federal law) has held that before the property is actually restrained, the third party may simply file a petition in the existing case, without the need for a standalone action. A formal third-party claim becomes indispensable once the property has actually been seized or attached.

Missing the window between the auction sale and the signing of the deed means, in practice, watching property permanently leave the estate of someone who never owed anything.

For that reason, anyone who learns of an attachment on his or her own property should not wait. Monitoring the underlying case is decisive, because the steps of forced sale follow a schedule and the useful window to react is usually short. Delay also weakens any argument of good faith and makes it harder to obtain a preliminary injunction.

Documents that prove ownership or possession

Success in a third-party claim depends on strong proof of the right being asserted. The third party must show, in the initial petition itself, that he or she owns or possesses the restrained property, and the quality of that documentation directly affects whether the suspension injunction is granted.

For real estate, an up-to-date property registry certificate (matrícula) from the real estate registry office is the strongest document, because it proves ownership. When the transaction has not yet been registered, the purchase and sale commitment, proof of installment payments, utility bills in the possessor’s name, and renovation receipts help establish possession and good faith.

For vehicles, the registration certificate and the transfer document show ownership. For personal property in general, invoices, contracts, receipts, and photographs make up the body of evidence. In disputes over a spouse’s marital share, the marriage certificate, the prenuptial agreement, and proof that the debt did not benefit the family strengthen the case.

Consistency among the documents matters as much as their existence. Compatible dates, a clear chain of transfer, and the absence of signs of fraud against enforcement make the petition more persuasive. Witness testimony can supplement the documents, especially when possession is long-standing and not formalized in a public registry.

The procedure and the preliminary injunction suspending the attachment

Third-party claims are assigned by dependency to the court that ordered the restraint and are processed in their own case file. The initial petition must describe the origin of the right, identify the challenged act of restraint, and be accompanied by documentary proof of possession or ownership, with an express request to suspend the measures affecting the property.

The most sensitive point for the third party is the urgent relief. Article 678 of the Code of Civil Procedure provides that a decision finding possession sufficiently proven will order the suspension of the restraining measures challenged in the claim, as well as the provisional maintenance or restoration of possession, if the claimant has requested it. The judge may condition the order on the posting of a bond, except when the claimant is economically disadvantaged.

Once the plausibility of the right is recognized, the property remains protected while the case proceeds. After the claim is accepted, the judge orders the defendant to be served, and the defendant has a deadline to file a response. From there, the case follows the ordinary procedure, with the possibility of presenting evidence, an evidentiary hearing, and a judgment.

In the end, if the claim is upheld, the restraint is lifted permanently and the property returns free and clear to the third party’s estate. If it is denied, the attachment stays in place and the enforcement continues. Both the decision on the injunction and the judgment on the merits can be appealed, which underscores the importance of a well-prepared case from the initial petition onward.

Frequently Asked Questions

Can the attachment be suspended before the final ruling on the claim?

Yes. Procedural law allows the judge to grant a preliminary injunction suspending the restraining measures at the very start, as long as the third party’s possession or ownership is sufficiently proven in the initial petition. This decision preserves the property while the case is argued, and it may be conditioned on posting a bond, which is waived when the claimant shows economic hardship.

Can someone who bought real estate without registering the deed file a third-party claim?

Yes. Brazilian case law recognizes the standing of a purchaser under a promise-to-sell contract who holds possession, even if the contract is not registered, to defend the property against attachment in an enforcement action brought against the former owner. Proof of the purchase commitment, the payments, and actual possession is essential to persuade the court and rebut any allegation of fraud against enforcement.

What happens if the third party misses the deadline to file the claim?

Missing the deadline after the deed of auction sale, adjudication, or transfer has been signed rules out the third-party claim. What remains are harder and less certain paths, such as standalone actions to dispute ownership or to seek compensation, which generally take longer to produce a result. That is why acting quickly upon learning of the restraint is decisive for effectively recovering the property.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.