Bought a property in the plant, but gave up and want to return it? The rules for those who fail to pay or give up on the contract in the middle of the so-called real estate cancellation must change.

They will be clearer and more automatic, which avoids the need to take all problems to the Court to solve. On the other hand, they will get tougher and more expensive too, with fines that can reach 50% of what has already been paid, which will require even more caution and planning from those who are thinking of buying their own home.

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New rules await sanction from the president

Last week, the Chamber of Deputies approved the latest pending amendments to the bill that sets rules regarding the amounts to be paid by both buyers and builders when payment or delivery deadlines are not met (PL 1,220/15). The text goes to President Michel Temer's approval.

The buyer who defaults or gives up the property will be entitled to receive back 50% to 75% of all the amount paid so far. Currently, the available laws do not define any amount or percentage of return for these cases, which had to be taken to court and defined by the judge.

Several decisions, however, including the STJ (Supreme Court of Justice), which serves as a parameter for the entire country, had already stipulated that the retention percentage should not exceed 25% - that is, a guarantee of at least 75% back.

To clear up the main doubts, UOL spoke with lawyers Marcelo Taipai, vice president of the Consumer Defense Commission of the OAB (Ordem dos Advogados do Brasil); Caio Portugal, vice president of urban development at Secovi-SP (Housing Union), and Paula Farias, a lawyer specializing in real estate law.

See below for issues to consider:

What changes for those who cancel the property purchase?

The main change is the fixing of the percentage to be retained by the construction company on what has already been paid when there is a breach of the contract. This retention, a kind of fine, will be 50% for projects made with earmarked equity (a mechanism to protect the resources invested in construction) or 25% for those without earmarked equity (see below for more details on equity of affectation).

Currently, there is no defined percentage in law, but court decisions apply a retention percentage of up to 25%.

The refunded amounts must be returned with monetary correction.

Is the brokerage fee refunded?

No. The brokerage fee, which is usually 5% to 6% of the property's total value, is also retained along with the 50% or 25% fine when amounts already paid are returned. This means that the total amount lost by the withdrawing buyer is, in practice, greater: if, for example, he must leave 50% of what he paid to the construction company, this will, in fact, reach 56%, considering the brokerage fee of 6%.

What are the money-back deadlines? Have they changed too?

Yes. Currently, the payment of the part to be returned by the construction company must be immediate, after the contract is terminated or the court decision concluded. With the new rules, the return will only be made after the completion of the works, when the occupancy permit is given, the release of the city hall for the project to be delivered. The company has a period of 30 days from the date of occupancy to make the return.

This is the rule for enterprises that have investment protection (allocation assets). For those who do not have the mechanism, the return must be made within 180 days from the cancellation of the contract.

Do the rules apply to the purchase of any type of property?

No, they are valid exclusively for contracts between the consumer and the builder or developer, which, in general, are the properties purchased on-site, in which the buyer already starts to pay the installments before the project is ready.

It also includes new and already-delivered properties in which the financier continues to be the developer, which, in the event of a return, also implies an increase in the company's fine of up to 1% of the property's value per month of housing. A property that was purchased for R$500,000, for example, will require up to R$5,000 in monthly fines if the owner changes.

But these situations are less common. When construction is completed, developers usually demand that the remaining amount be paid off before handing over the keys, and people, in general, make a new loan with the bank. The debt, then, becomes with the financial institution and follows the general rules of contracts and payments.

The same goes for used properties: in this case, the contract is directly with the owner and also follows the general regulations.

Who has already purchased the property is also subject to the new rules?

No, they will only be valid for contracts signed after the publication of the law, which still depends on presidential sanction.

In what situations do I lose the money I have already paid?

Property loss and partial return of what has already been paid occur when the contract is terminated. The contract can be terminated if the buyer withdraws from the acquisition (due to financial difficulties or personal reasons, for example) or if it defaults. With a delay of more than 90 days in installments, the developer can now cancel the purchase and start the return processes.

Can I prevent the loss somehow?

The law allows the withdrawing buyer to “sell” their mortgage, that is, they can advertise and sell the property to other people. The difference is that, as the property is not actually owned by him and has not been paid off, he assigns the rights under the contract, which is transferred to the name of the new owner along with the responsibility for the remaining installments.

Is there a distinction in the rules if the property is to live in or to invest?

No. Currently, all buyers already follow the same rules, regardless of the profile or planned use of the property, and no distinction is made in the new proposal.

What is the affectation equity?

It is a type of financial regime that the developer or construction company can choose to apply or not to each project they build. If the project is made with earmarked assets, it means that all the money it receives for investments – which comes from the installments paid by future residents – cannot leave it to be used for other purposes.

When there is no allocation equity , the construction company can use this collection in any other project or any other part of the company.

The affectation equity is a mechanism that gives more security to those who are buying. If the developer goes bankrupt, for example, that construction has its own resources maintained and can continue.

That's why the new proposal was more generous with builders who choose to use it: the fine they will receive is higher (50%, against 25% without protection) and they will also have longer terms for the return (only after the completion of the work, against a limit of 180 days in other cases).

Making a venture with or without earmarked assets is a decision that is up to the company alone. The information must be included in the contract and, before closing the deal, interested parties can consult the conditions of the project with the company.

Can I withdraw from the purchase if I change my mind?

The new project created a mechanism for the buyer's right of repentance. Allows him to be entitled to a full refund of what he paid, including the brokerage fee, if he formally informs the company of the withdrawal within seven days after signing the contract. The rule is only valid for contracts signed outside the company, such as fairs and sales stands.

And if it is the construction company that breaches the contract?

The new rules defined the tolerance period and fines if the company delays the delivery of the work. If the property is delivered more than 180 days (six months) after the date stipulated in the contract, the developer must pay the buyer a fine of 1% of the amount already paid, for each month of delay.

By way of comparison, the market value of a rental usually revolves around 0.5% to 0.8% of the property's price.

If the buyer chooses to cancel the contract because of the delay, he is entitled to receive back 100% of everything he paid, corrected, within 60 days of termination.

What are the advantages and disadvantages of changes?

The advantage is that it defines rules that were previously open and streamlines the withdrawal processes, which become automatic and faster. Until now, if a buyer stopped paying or the construction company delayed the delivery of the keys, the interested parties had to go to court to prove that they were harmed and ask for their return.

On the other hand, by setting the ceiling of 50% for withholdings, which, until now, were at most 25%, it made losses due to withdrawal or default more expensive for buyers, which has been criticized by the defense entities of the consumer.

Source: Tajarat.com.pk

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