The Attorney General of the State of São Paulo forwarded to the Court of Justice (TJ) a statement favorable to the maintenance of the so-called “right of protocol” in the real estate market of the capital of São Paulo, according to a claim defended by the companies in the sector.

The TJ suspended the right of protocol in the city in February, at the request of the Public Ministry. This instrument guaranteed that the real estate projects sent for licensing could be analyzed according to the legislation in force at the time they were filed with the City Hall, even when there were legal changes in the following periods.

In turn, the Prosecutor's Office argued that article 162 of law 16,402 / 2016 (zoning law ) guarantees the practice of the right to protocol.

“The norm, respecting the principle of legal certainty, allows the urban licensing processes to be conducted and concluded under the legislation in force at the time they were initiated” , stated the attorneys Juan Francisco Carpenter and Claudia Polto da Cunha, who signed a manifestation, dated

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“The reading of the device (zoning law) shows that it is a rule of intertemporal law” , added the prosecutors.

The heart of the criticisms of the Public Prosecutor's Office (MP) is that the release of licenses must respect the restrictions established by the new zoning law, especially in sections that have come to be classified as environmental protection zones.

In such cases, the acquired right of protocol would not be valid, which is considered unconstitutional by the MP for causing damage in areas that have gained recognition about the need for environmental protection.

Next steps

The appeals against the injunction were sent for judgment last Friday (4) by the judge responsible for the case and inserted in the agenda of May 16 of the session of the special body of the Court of Justice.

The Municipality of São Paulo has already appealed against the injunction, in a process that brings together contrary manifestations of business associations.

The judgment may maintain, suspend or reduce the effects of the injunction. In this last possibility, the veto to the right of protocol would continue to apply only to projects within the environmental protection zones.

The expectation of businessmen and investors is that the injunction will be overturned in full, according to the president of the Brazilian Association of Real Estate Developers ( Abrainc ), Luiz França. “There is a recognition that the law must prevail. We want Justice to simply comply with what is written in the law, ” he said.

France added that the situation compromises undertakings that were already close to being announced to consumers, which creates legal uncertainty, inhibits investments and prevents the creation of jobs in the sector.

A total of 88 real estate projects may have their launch suspended or postponed in the city of São Paulo if the injunction is maintained. These projects add up to 19,200 apartments - equivalent to 67% of last year's launches in the city - and represent R $ 11.2 billion in general sales value (PSV).

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