Fiduciary alienation. Not all purchase and sale contracts for off-plan properties can be rescinded. The so-called rescissions (distratos) have been vetoed by the Judiciary in cases where the buyer opted for bank financing from the construction period onward. And, in the search for lower interest rates, signed a clause providing for fiduciary alienation, whereby the asset remains in the ownership of the financier until the debt is fully paid. The matter is from Valor.
According to the newspaper, the logic is that the property is paid off and in the bank’s name. The buyer is allowed possession until they finish paying all the installments that are due. For this reason, according to the Court of Justice of São Paulo (TJ-SP), it is not up to the construction company to rescind the contracts nor to be held liable for the restitution of amounts that have already been paid. The discussion, which involves properties of the Minha Casa, Minha Vida program, must be between the customer and the bank that lent the money.
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There was doubt and divergent decisions on this subject until recently. With the crisis in the real estate sector came thousands of lawsuits from customers interested in breaking off-plan property purchase contracts. Whether because they no longer had the means to pay, or because they believed that, since prices had fallen, they had made a bad deal.
To define the restitution of the amounts, the Consumer Protection Code (CDC) was applied in most cases. The buyers filed the actions against the construction companies and developers and managed to get back up to 90% of what had been paid. There were decisions to this effect both for common financings, made directly with the companies, and for those that provided for fiduciary alienation, entered into with the banks.
Financing with fiduciary alienation
In a recent case, the customer had financing with fiduciary alienation granted by Caixa Econômica Federal (Caixa). And had filed an action only against the developer. He was requesting to rescind the purchase of the property and to get back all the installments paid.
The case was judged by the 27th Civil Court of São Paulo (case no. 1093621-35.2017.8.26.0100). Judge Vitor Frederico Kümpel determined the inclusion of Caixa in the proceedings and, since it is a federal institution, ordered that the records be forwarded for judgment in the Federal Regional Court (TRF).
In the second instance, decisions have also been rendered for the impossibility of the rescissions. There is an understanding in the 6th and 7th Chambers of Private Law of the Court of Justice of São Paulo (TJ-SP). In one of the cases (case no. 10273 97-42.2016.8.26.0071), the consumer had obtained a favorable decision in the first instance.
But for the reporting judge, appellate judge Rodolfo Pellizari, the buyer would no longer be able to return the property because he was no longer its owner. “The financing agreement with fiduciary alienation as a guarantee is recorded, in which the buyer transferred ownership of the property to the bank, retaining only possession.”
The appellate judge adds in his vote that, for the rescission to be possible, the buyer should first fully pay off the contract with the bank and recover ownership of the property in order to then return it to the seller.
Source: Valor (Joice Bacelo)
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