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Law 13.786 / 2018, published in the edition of this Friday (28/12) of the Official Journal, governs property distortions and governs the rights and obligations of real estate developers, developers and purchasers of property real estate in the event of contractual termination. But experts differ on the effects of the standard. While some lawyers believe that this will contribute to the development of the real estate market, others believe that the law punishes consumers exaggerated.
The standard amends the regulation of securities that are refunded to purchasers who waive the purchase of the property. There are two regulated situations. If the withdrawal occurs in a business in which there is no equity allocation (limited to a specific business), the refund will be 75% of the amount paid.
"The approval of the project will certainly contribute to the development of the Brazilian real estate market, which is now suffering not only the effects of the economic crisis, but also the serious problems arising from the legal uncertainty that exists in case of termination of the contract due to default of the housing buyer in the real estate development ", says Ulisses Sousa partner of Ulisses Sousa Advogados.
For him, the new law should put an end to the judiciarization of the renouncements of the buyers in the real estate projects which, according to Sousa, would represent approximately 40% of the national market.
"The lack of clear rules gives rise to many disputes, in which the final result in this matter is conferred on the judiciary, where cases are often judged without looking closely at the reality and nuances of the civil construction market "says the lawyer. "The construction market, which requires significant capital investment, can no longer live with such insecurity, which contributes to rising costs and prevents the realization of new real estate developments."
The question of percentages, he explains, brings clear rules for the buyer and the seller. "The new law will contribute to bring balance and harmony to these contractual relations, without privileging any of the parties," explains Sousa.
Different percentages
The lawyer Rodrigo Ferrari Iaquinta of the real estate law department of Braga, Nascimento and Zilio Advogados, explains that the difference in percentages for distractions is due to the fact that the existence of badets badignment means that all the values paid by the buyers of certain properties are exclusively intended for the construction of the company in the country. for example.
"Thus, the values are" affected ", that is, limited to one company, which protects buyers and founders because it ensures that construction will not be hindered," Iaquinta said.
According to the lawyer, another important issue currently regulated is related to the purchaser can withdraw from the acquisition, without penalty, within seven days of the sale. It recalls that, in cases of fiduciary alienation, there can be no distraction since, in such commercial arrangements, the rule is already provided for in Law No. 9.514 / 1997.
None legal provision
lawyer Eduardo Vital Chaves partner of Rayes & Fagundes Advogados, the sanctioned law is in contradiction with the legislation in force. According to him, the Civil Code and the Code of Defense and Consumer Protection do not provide for fines in this percentage. On the contrary, they protect the consumer from exaggerated penalties.
"Sub-paragraph II of Article 51 of the CRC makes it clear that no clause exempts the consumer from the right to a refund of amounts already paid, and sections IV and XV of the same article also protect consumers against clauses which provide unfair obligations, which considerably disadvantage the consumer or which compromise his system of protection. "
Chaves stresses that the judiciary has already set this percentage between 10% and 25%, in the repeated decisions of the courts and courts. According to the specialist, it is questionable, through the new legal standard, a transversal attempt to change the interpretations already consolidated. The percentage of the penalty provided by law is disproportionate.
"The manufacturers return the goods to resell them to third parties, receiving in full the new sale.But what about the buyer who abandons the property, must pay a fine of 50% ? Lose half of your economy? There is no reason and proportionality.The builder can not have illicit enrichment.If the person abandons the purchase due to lack of conditions, can not lose 50%, "he says.
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