At the public hearing on penalties for the delay in delivery of properties under construction, held yesterday afternoon (27) by the Superior Court of Justice (STJ), 13 presenters took part in the discussion of topics such as the legal nature of penalty clauses in purchase and sale agreements and the consequences for consumers who decide to acquire off-plan properties.
The discussions will provide elements for the justices of the Court’s Second Panel to rule on repetitive appeals concerning two legal controversies: the cumulation of compensation for lost profits with the penalty clause (Topic 970) and the possibility of reversing the latter against the developer (Topic 971), in cases of delay in the delivery of property under construction. The hearing was convened by Justice Luis Felipe Salomão, the reporting justice for the appeals.
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The first to take the floor, Federal Public Defender Antonio de Maia e Pádua stressed that the design traditionally used in real estate acquisition contracts leads consumers to make decisions that are detrimental to them, creating a kind of “desacralization of consent.” Pádua argued for upholding the STJ’s case law in the sense of the possibility of cumulation and reversal of the penalty clause.
Bis in idem
Next, the representative of the Brazilian Chamber of the Construction Industry (CBIC), Sylvio Capanema de Souza, maintained the compensatory — and not moratory — legal nature of the penalty clause, which is why the idea of cumulation with lost profits would represent a genuine bis in idem in cases of delivery delay. “It would be a kind of unjust enrichment of the creditor itself,” the speaker noted, while also arguing against the possibility of reversing the clause.
A member of the Brazilian Institute of Consumer Policy and Law (Brasilcon), attorney Amanda Flávio de Oliveira recalled that the delivery deadline is one of the main factors taken into account by consumers in deciding to purchase a property. According to her, in many cases companies already anticipate that they will not meet contractual deadlines, but the prospect of profit removes the “sustainable character” of the offer presented.
On behalf of the National Association of Public Defenders (Anadep), Antonio Carlos Fontes Cintra emphasized the condition of vulnerability of many of the consumers who decide to contract with developers. According to the public defender, a large portion of buyers dispose of their previous property in order to gather money to buy a new residence and, with the delay, suffer serious consequences in their housing situation.
Comparisons
Economist Gustavo Franco presented a perspective at the intersection of the legal and economic fields, highlighting the complexity of the real estate market and the historical evolution of property purchase and sale agreements. Citing examples from the electricity and export sectors, the economist stated that the real estate developer loses money when it delays the delivery of the property, since it is from the consolidation of the sale that the company begins to recover from the “negative movement” of contributing the resources necessary for the development.
“The two situations — cumulation and reversal of the penalty clause — are solutions that we economists define as populist,” the economist noted.
Next, the representative of the Consumer Defense Institute (Idec), Walter José Faiad de Moura, rebutted the comparisons with other economic fields, such as the energy sector, on account of the specific legal context of the real estate sector. In addition to advocating parity of the parties in property purchase agreements, he maintained the possibility of analysis, by the Judiciary, of individual cases related to the delay, since each development adopts its own risk factors.
Legal system
Attorney Daniel Martins Boulos, representing Insper/SP, stated that the discussions held at the public hearing are part of a broader field of analysis, concerning the possibility of the Judiciary interfering in the contractual relations established between the parties. According to the attorney, the Brazilian legal system gave the penalty clause an accessory character to the main clause and, for this reason, it would not be possible to create a new clause unbound from the principal obligation.
“The legal system already provides instruments for the Judiciary to control the exercise of the freedom to contract. But, among these instruments, the possibility of creating contractual clauses is not included,” stated the representative of Insper/SP.
The representative of Sinduscon/SP, Ricardo de Oliveira Campelo, in turn cited concrete cases related to the real estate market and stressed the need to distinguish between properties intended for housing and those purchased for investment purposes, such as leasing. Campelo also defended the compensatory character of the penalty for delay.
False dichotomy
Also bringing concrete examples, Alvimar Pio Aparecido Júnior, a member of the Real Estate Law Commission of the OAB/PA, stated that, in a development in Pará, the construction company promised consumers that they would watch the 2014 World Cup in their new residences; however, even after the 2018 World Cup, the buyers had still not received the properties.
“If it were not a profitable practice, why would developers repeatedly engage in this type of conduct?” pondered the representative of the OAB/PA.
Professor Teresa Alvim, of PUC/SP, criticized the false dichotomy of market versus consumers, and advocated a position without privileges, one that reconciles interests. She stated that certain decisions may make properties more expensive. “Subsequent obligations favor litigiousness and make properties more expensive. A global view of the problem is needed for us to have balance in the relationship,” she said.
Economist Eduardo Zylberstajn, of FGV, stated that the effect of the awards is measured in prices and affects low-income consumers. “The more severe the award, the greater the impact on price and the greater the effect on the community. As economists say, the consequences will always end up in the price,” stated Zylberstajn, who also works as a researcher at the Foundation Institute for Economic Research (Fipe).
Dreams
Attorney Renata Abalém, of the OAB/GO, said that the impact of the delivery delay goes far beyond the breach of a simple commercial relationship. “We are not talking about buying a product at the supermarket. In the case of properties, it is the delay in the delivery of dreams,” the attorney commented, citing emblematic cases of delays of up to nine years.
Closing the hearing, attorney José Carlos Baptista Puoli, representing Secovi of São Paulo, recalled that the delay in itself generates immense losses for the developer, such as financial, labor, and tax charges. He argued that, in ruling on Topic 970, the STJ should not allow the cumulation of claims, and that, in Topic 971, the reversal of the penalty clause should not be possible.
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Source: STJ
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