Withdrawal from the purchase of a property. The contract-rescission bill sets a 50% fine for the consumer in the event of withdrawal from the purchase of a pre-construction property. The Plenary of the Chamber of Deputies approved, on the 6th, Bill 1220/15, which governs the amounts to be received by the borrower upon withdrawal from the purchase of a property. The matter, approved in the form of a substitute, was sent to the Senate.
The fine of half the money (invested by the buyer) will be applied to properties built under the so-called “affectation regime,” when the development is legally constituted separately from the construction company under the terms of the law. This is the largest segment of the new property market in Brazil. If the property is not built under the affectation regime, the maximum fine will be 25%.
Separate estate – Due to the restriction of credit for the real estate sector by reason of the low number of sales and high rate of contract rescissions, the tendency of the financial system is to favor developments with affected estate because of the greater security of return.
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Data from the Brazilian Association of Real Estate Credit and Savings Entities (Abecip) indicate the growth of this mechanism since 2016 in the sale of pre-construction properties at the majority of large companies (Rossi Residencial, MRV Engenharia, Cyrela, Even Construtora e Incorporadora, EZTec and Rodobens Negócios Imobiliários).
With the affected estate, the installments paid by the buyers are not mixed with the estate of the developer or construction company and, if it runs into financial difficulties, it may not become part of the bankruptcy estate. For the reporting member, precisely because this money is used for the completion of the development, his text allows the return of 50% of the amounts only after 30 days from the issuance of the “occupancy permit” (habite-se).
The return of the amounts with the 25% fine for developments without an affected estate, on the other hand, will occur within 180 days after the contract rescission.
Deductions – In both cases, when the borrower had the unit available for use, even before the “occupancy permit,” the real estate developer may further deduct amounts relating to the taxes levied on the unit, condominium fees and contributions owed by the residents, other charges provided for in the contract, and an amount by way of enjoyment of the property.
This amount will be calculated according to the criterion agreed upon or, in the absence thereof, in a manner set by the judge at an amount equivalent to the rent of a property of the same standard and in the same location.
Exemption from the fine – When the withdrawing buyer presents a party interested in taking over the property, there will be no retention of the contractual penalty (25% or 50%), provided that the developer gives its consent to the operation and the new borrower has its registration and financial capacity approved.
In the case of resale of the property that is the object of the rescission before the deadline for payment of the restitution, the amount to be returned to the buyer will be paid within 30 days of the resale.
Delay in delivery – As to the penalty for delay in the delivery of the property, there will be a period of 180 days for the postponement of this delivery without a fine or grounds for contractual rescission if this is expressly agreed upon in the contract.
After these 180 days, the buyer may request rescission, without prejudice to the return of all amounts paid and of the established fine, adjusted, within 60 calendar days of the rescission request.
In the event that the 180 days are exceeded and the buyer does not wish to terminate the contract, an indemnity of 1% of the amount paid to the developer will be due, on the date of delivery of the unit, for each month of delay, monetarily adjusted.
Withdrawal – The substitute governs withdrawal from the purchase of properties if carried out at sales stands and outside the headquarters of the development’s developer.
The right of withdrawal may be exercised within seven days, counted from the purchase, with the return of all amounts possibly advanced, including the brokerage commission. If the buyer does not manifest within seven days, the contract will be considered irrevocable.
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Sources: Chamber of Deputies/ Uol/ Exame
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