Brokerage commission – The courts have ruled that payment of a brokerage commission is not due when the real estate transaction is not completed due to the withdrawal of one of the parties, on account of the failure to present the certificates relating to the property that is the subject of the transaction.
In a case heard by the Fourth Panel of the Superior Court of Justice (STJ), the reporting justice noted that payment of the brokerage commission is not mandatory in situations where the change of mind – even before the deed is drawn up – is motivated by reasons such as the discovery of a legal risk or structural problems with the property.
The prospective buyers of the property asked not to pay the brokerage fee; they withdrew from the purchase because they had not been informed of the existence of a tax foreclosure action against the owner of the property.
In the justice’s view, the Consumer Protection Code recognizes the vulnerability of consumers in a transaction intermediated by a real estate broker. Furthermore, the Civil Code establishes that the broker must carry out the intermediation with diligence and prudence, spontaneously providing the client with all information regarding the progress of the transaction.
Duty not fulfilled – The reporting justice stressed that, in this case, the real estate agency did not fulfill its duties, since it did not even research actions that might involve the sellers, so as to prevent the conclusion of a null, voidable, or ineffective transaction.
The case law of the STJ holds that, in a brokerage contract, the obligation is one of result, and the commission may only be charged when the broker brings the buyer and seller together, resulting in the effective sale of the property. If the transaction is not completed due to a justified change of mind, the broker is not entitled to receive the remuneration.
According to the STJ, the reporting justice emphasized that the broker cannot relieve himself of the task of advising the parties until the transaction is concluded, at the risk of leaving the negotiation precarious and incomplete.
The case refers to proceeding REsp 1364574
Read also:
A debt clearance certificate cannot be required for the registration of real property
← Back to blog