The environment of economic crisis in Brazil – with inflation and high interest rates – is starting to unravel the dissolution law, created three and a half years ago to define clear rules for the cancellation of contracts for the purchase and sale of properties in the plant.
Lawyers in the field report that there are court decisions reducing the fines signed in the contracts within the legal parameters in order to give a stray to consumers in financial difficulties. The situation worries developers, who see the risk of stimulating terminations, generating losses and creating a climate of insecurity for investments in new projects.
The cancellation law emerged after sales cancellations exploded from 2014, when the country entered a recession. At the time, there were no rules for this situation, and court decisions forced companies to return 75% of the amount paid by consumers. Developers lost money, left buildings unfinished and spent years with negative results.
With the law, the retention of 50% of the amount paid by the consumer was established until the moment of termination. It was also defined that there will be no refund of the brokerage fee, of about 5% of the value of the property. Another important point: the developers were authorized to return the money only after delivering the property and receiving the occupancy permit, in order to prevent them from running out of money to finish the work.
Now, the scenario is different. The real estate market is entering a phase of intensification of the completion of works after two years of record sales. And those who closed the purchase of an apartment in the plant a long time ago are having more difficulties to obtain real estate credit because the interest on the financing has gone up. That is, the cauldron gathered the ingredients for the distractions to rise again. “I think there will be more cancellation requests in the coming months”, warns the partner at VBD Advogados and legal advisor for Secovi and Sinduscon, Olivar Vitale.
Partners Pedro Serpa and Daniel Gomes, from SIDC Advogados, specializing in real estate law, report that they are noticing an increase in demands for lawsuits related to cancellations and that they have already come up against court decisions lowering the fines provided for in the contract. According to them, Law 13,786 left a gap for the amounts to be challenged in the courts. “The judge has the discretion to reduce the fine. This takes away the safety and predictability character that was expected in the construction of the law”, says Gomes.
The partners add that this type of breach can even create situations in which the consumer who is in financial difficulties see the cancellation as a good solution, as it offers the chance to recover more than 50% of the amount paid plus the monetary correction by INCC or IGP-M. “With inflation and interest rates on the rise, opting for a cancellation may even be an attractive deal”, observes Serpa.
In the view of lawyer Marcelo Tapai, a partner at Tapai Advogados, which focuses on consumers, it is natural that the contractual terms should be relaxed, as it is known that the judge can interfere when he sees an imbalance in any of the parties.
INCREASE. The volume of cancellations had a considerable increase in nominal terms, but remains stable as a percentage of total units sold. It is necessary to remember that the market had record sales in the last two years.
There were 9,701 cancellations in 2019, 12,556 in 2020 (up 29.5%) and 13,104 in 2021 (up 4.5%). The data are from research carried out by the Economic Research Institute Foundation (Fipe) in partnership with the Brazilian Association of Real Estate Developers (Abrainc).
Cancellations accounted for 11.8% of sales in 2019, 11.1% in 2020 and 11.6% in 2021. In other words, despite the nominal increase, it is not a crisis. The numbers are still far from the peak of 2015, when 19,050 units were canceled, or 35.1% of sales.
Abrainc was contacted, but did not grant an interview.
The information is from the newspaper. The State of São Paulo.