Resolution of purchase and sale contracts and the solutions proposed by PLC 6...

nila44

Chamber Bill 68/2018 is being processed in the Federal Senate, arising from Bill 1,220/2015, approved by the Chamber of Deputies, which aims to amend provisions of the Real Estate Incorporation Law (Law 4,591/64), regulating the termination of contracts purchase and sale of properties in the event of default by the purchasers.


It is undeniable that over the last few years the courts have been the scene of multiple legal demands initiated by purchasers, consumers or not, seeking to cancel contracts signed at a more favorable economic time, often under the argument that they no longer have the financial conditions. to pay the adjusted price for the acquisition of a specific real estate unit.

It turns out that many of these buyers B2B Lead began to use this argument to claim mere regret in acquiring the property, as a result of the devaluation identified especially with the serious economic crisis that began in the country from 2014 onwards. to use the claim of “financial hyposufficiency” to eliminate the natural risks of acquiring properties, that is, if the property appreciates after the acquisition, the acquirer remains in the contract enjoying the fruits of the appreciation, if the property suffers any devaluation since Once the deal is concluded, the acquirer, regretting the contract, seeks to have it canceled in court, often requesting the full and corrected return of all amounts paid and also with the application of late payment interest.

Obviously, one cannot close one's eyes to the real difficulties faced by acquirers in the face of the already well-known scenario of economic crisis in the country, and the need to create mechanisms that can regulate the disconnection of acquirers from legal transactions that they will evidently be unable to comply with is evident. However, such a resolution — it should be noted, based on contractual breach of contract by the purchaser — cannot take place without objective criteria and at the expense of construction companies, suffocating the national real estate market.

In fact, PLC 68/2018 aims to solve a problem that is much more economic than legal or even legislative, since the Brazilian legal system has sufficient mechanisms to pacify any controversy related to contractual breach of both acquirers and developers and /or builders.

Among the various topics covered by PLC 68/2018 are: (i) the positive period of tolerance for the delivery of the property (180 days), counting from the contractually established period (article 43-A, caput ); (ii) the corrected return of the amounts paid, including discounts relating to the brokerage commission and conventional penalty, the latter not less than 25% of the amount paid (article 67-A); (iii) the discount on taxes, fees and condominium fees levied on the property, in addition to the so-called “occupancy tax”, which is nothing more than remuneration for the possible period in which the purchaser remained in possession of the property (paragraph 2, article 67-A); (iv) the protection of the affected assets, with the postponement of the reimbursement of amounts paid until after the issuance of the occupancy permit, also increasing the conventional penalty to 50% (paragraph 4, article 67-A); (v) the reimbursement of amounts resulting from the contractual resolution within 180 days from the termination of the contract, if the merger is not subject to the allocated assets (paragraph 5, article 67-A); (vi) bringing forward the deadline for payment of amounts to 30 days, if the unit is resold (paragraph 6, article 67-A); (vii) exemption from the adjusted penalty clause, if the acquirer finds a “replacement buyer”, as long as it has the consent of the developer and the financial capacity of the new acquirer is recognized (paragraph 8, article 67-A); and (viii) the regulation of a “right of repentance” to be exercised by the acquirer within a non-extendable period of seven days and only if the contracts were signed outside the developer’s headquarters (paragraph 11, article 67-A), from when the irreversibility provided for in article 32, paragraph 2, of Law 4,591/64 will be observed.



Although many of the topics covered by PLC 68/2018 have been pacified by jurisprudence over the last few years, it is clear that its approval is relevant both for the protection of important rights of buyers and for avoiding a collapse of the national real estate market, bringing rules clear and objective to be observed by the Judiciary in demands that deal with this matter.