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Real Estate Law

The Distract of property in the plant: controversies and practical reflections

The purchase of plant property is an operation that involves risks for all parties, especially for the buyer who acquires a "dream" and pays for it in advance without receiving, for years, nothing tangible in return, only a commitment of future delivery.

The seller constructor incurs risks that must be calculated, measured and incorporated into the price of the property, any losses in the short term, due to the current crisis in the country, have certainly already been offset by high profit margins in previous periods where prices of real estate rose by 300% in many cases.

With the fall in interest rates and the resumption of the economy, the structured constructors will remain in the economy and those without management quality will disappear, it is another cyclical movement of the economy inherent in business risk.

The judicialization of this issue is undoubtedly the result of the lack of common sense of the construction companies who seek to mitigate the effects of the crisis in their business through unviable offers to consumers, from swaps to unlaced properties to the offer of return of derisory amounts which was actually paid.

It is inhumane for the consumer to be at the mercy of the distraction offers offered by the builders, who are visibly facing Article 53 of the CDC (nullity of a clause providing for the loss of paid installments). Consumers, already weakened by the situation of non-approval of financing or unemployment, end up accepting derisory figures because of the financial difficulty, because they have no choice.

It can not be considered that the builders in case of distract are left with the property for resale and also with almost all the financial resources of the consumer, becoming illicitly enriched.

The distract happens, in practice, before three scenarios:         

a) the buyer, for reasons beyond his control, loses the financial capacity to continue to perform the contract;

b) an investor buyer who, despite having complied for years, the value of the same property in sight is still cheaper than the debtor's own balance with the construction company.
Ex. I paid in two years direct to builder R $ 87,000.00 and I still owe for discharge R $ 300,000.00, and in the "sales stand" the property is being traded at R $ 240,000.00, so would the consumer be paying R $ 387,000.00 for a property that is being traded at R $ 240,000.00, an initial loss of R $ 147,000.00, therefore substantial losses attract the consumer to the judicial distract, since the friendly proposals of the constructors, when they exist , are in total disagreement with the jurisprudence of the courts;

c) buyer who loses security in continuing with the property and decides to terminate the contract because of the seller - delay in delivery of the property.

The parameters for the distractions already defined by the Judiciary are very clear and are backed by thousands of decisions, the rules are simple:

- Termination due to the fault of the contractor: delay in the delivery of the work - 100% of the amount paid corrected since disbursement - the discussion takes place if the brokerage should also be returned, since the business was not realized due to the vendor's exclusive fault and Summary 543 of the STJ states that the return must be comprehensive, so in this case, brokerage is inserted in the context of the business's downfall because of the seller, so the reimbursement of the buyer's expenses should be total;

- Resilience due to the impossibility of payment by the buyer - Brazilian jurisprudence established a refund of 90% of the amounts paid since the disbursement, without the right to return the brokerage to the consumer.

The retention of 10% of the amounts paid to the builders in cases of resilience is based on a legal assessment of thousands of decisions, so these decisions end up being established as a conquest of the consumer against the interests of the builders.

Let us not forget that the reimbursement of the amounts paid, in the vast majority of cases, lends itself to the acquisition of another house, often of lower value, so it is at risk more than capital, but, in fact, the Brazilian dream of the house herself in CF / 88.

The builders are very articulated to, through political pressures in the Executive Branch, regulate the distractions according to their conveniences, rather than to guide their extrajudicial negotiations in line with the understandings already settled by the Judiciary.

Issues such as fine / retention percentage, payment deadline and other demands have already had the outlines defined by the Judiciary as a parameter that must be respected and applied in extrajudicial agreements, avoiding the clogging of the judicial machine.

The Executive Branch, through SENACON - an organ of the Ministry of Justice that should defend the rights of consumers and the construction companies, through their class entities, seek to regulate the distractions, which, in fact, are already subject and duly regulated by the Code of Consumer Advocacy and STJ Precedent 543, therefore, we must be alert, any positioning of these negotiations should be in the sense of what is already defined in law and in STJ Summaries.

SENACON's negotiations must also converge in the sense of the majority case law of the state courts, under the risk that federal consumer organizations are agreeing to regulations in flagrant disregard of rights already acquired by consumers and guaranteed by the Judiciary through due process of law .

It is therefore essential that consumer protection bodies in general are at the service of their cellular scope - consumer protection - and align the gains already established by the Judiciary in favor of the consumer, instead of analyzing and evaluating proposals in disagreement with the understanding majority of the Judiciary, favoring large economic groups.

As if the incursions in the Executive were not enough, the builders seek to deprive consumer rights also in the Legislative Branch, in the concrete case, through Bill No. 774/15, in the Federal Senate, on the initiative of Senator Romero Jucá, who seeks to regulate the distractions in complete disrespect of the settled case law of the STJ and current legislation and in flagrant benefit in favor of the builders.

We live in strange times, but we have to pass this country clean, can not the consumer's right to suffer such a growing erosion to the point that consumers are totally drifting, without backing.

We should not allow consumers, for lack of concentrated financial power and structured lobbying, to succumb to the interests of economic groups.

It loses the citizen, the country and deepens the gulf to reach a more just society.

Our real estate law segment covers a wide range of services rendered with excellence:

- Indemnity for delayed delivery of real estate purchased at the plant.

- Distract (return of the property before deliveries of the keys).

- Collection of undue charges (transfer fee and SATI rate).

- Indemnity for not delivering planned furniture.

- Legal evaluation of real estate before purchase.

- Advice on the purchase of real estate in the United States of America.

- Out-of-court notifications and negotiations.

- Advising condominium owners and condominiums (delivery of the property in disagreement with the descriptive memorial) or defect of work after the delivery of the development in the plant.

* All issues involving property may be subject to our careful analysis.

* Documents required for analysis:

DISTRACT

- Commitment to Purchase and Sale and Summary Chart.

- Termination of the Distract, if any.

- Notification by e-mail informing the construction company of the interest in the termination.

- Client statement (list of all payments to the construction company).

- RG + CPF (Copies).

- Proof of address.

WORK DELAY

- Commitment to Purchase and Sale and Summary Chart;

- Term of the Delivery of the Keys, preferably or in default since, Dwell Term.

- Proof of the Condominium Payment (If you made payments before the delivery of the keys).

- RG + CPF (Copies).

- Proof of address.

Jose Maria Franco de Godoi Neto
Advogado, mestre em Direito Civil pela USP-SP e MBA em gestão de risco pela USP-FEA
Sócio do escritório Franco de Godoi Advogados.