At the end of August, the Court of Justice of São Paulo concluded a judgment relating to preliminary agreements for the purchase and sale of off-plan real estate. In the end, seven theses were approved.
A large part of the volume of actions pending in the Brazilian courts concerns so-called repetitive cases. The New Code of Civil Procedure created the Incident for the Resolution of Repetitive Demands (IRDR), the purpose of which is procedural economy, predictability, legal certainty, and equality among those subject to the jurisdiction.
Thus, the IRDR provides for the possibility (i) for the judge to summarily dismiss as unfounded a claim that contradicts the understanding established in the IRDR, (ii) for the judge to grant relief based on evidence if the factual allegations can be proven by documents and there is a thesis established in an IRDR judgment, (iii) of carrying out provisional enforcement without posting a bond, and (iv) of denying provision to an appeal by a single-judge decision.
And last Thursday, August 31, the Special Panel of Subsection of Private Law 1 of the Court of Justice of São Paulo concluded the judgment of IRDR No. 0023203-35.2016.8.26.0000, relating to preliminary agreements for the purchase and sale of off-plan real estate. See which theses were approved:
- Topic No. 01: “The tolerance period, not exceeding one hundred and eighty consecutive days, established in the sale and purchase agreement for the delivery of real estate under construction is valid, provided that it is set out in an express, clear, and intelligible contractual clause”.
- Topic No. 02: “In the acquisition of future autonomous units, financed in associative form, the contract must establish in a clear and intelligible manner the definite term for the formation of the group of purchasers and for the delivery of the property”.
- Topic No. 05: “The delay in the performance of delivery of real estate that is the object of a preliminary agreement for purchase and sale gives rise to an obligation on the seller to indemnify the purchaser for the unjust deprivation of the use of the asset. The use will be obtained economically by the measure of a rent, which may be calculated as a percentage of the updated value of the contract, corresponding to what the purchaser failed to receive, or had to pay in order to make use of a similar property, with the final term being the date on which direct possession is made available to the purchaser of the already regularized autonomous unit”.
- Topic No. 06: “It is unlawful to pass on the ‘construction interest’, or ‘construction-progress interest’, or ‘construction-progress charge’, or other equivalent charges after the term agreed in the contract for delivery of the keys of the autonomous unit, including the tolerance period”.
- Topic No. 07: “The refund of amounts paid in excess by the prospective purchaser in preliminary agreements for purchase and sale shall be made in simple form, except in the case of bad faith by the prospective seller”.
- Topic No. 08: “The failure to comply with the term for delivery of real estate that is the object of a sale and purchase preliminary agreement, including the tolerance period, does not cause the incidence of monetary restatement to cease, but only that of the interest and contractual penalty on the outstanding balance. Sectoral indexes, which reflect the variation in the cost of civil construction, must be replaced by other general indexes, except when the latter are more burdensome to the consumer”.
- Topic No. 09: “The penalty provided for in article 35, paragraph 5 of Law 4.591/64 does not apply to cases of delay in delivery of the autonomous units to the prospective purchasers”.
Lastly, the legal thesis relating to Topic No. 03 was rendered moot due to its assignment by the Superior Court of Justice (STJ), and the legal thesis relating to Topic No. 04 was rejected because it necessarily involves the examination of the factual matter of each case:
- Topic No. 03 rendered moot: “Allegation that the contractual penalty, provided for against the prospective purchaser, must be applied by reciprocity and equality to the hypothesis of default by the prospective seller”.
- Topic No. 04 rejected: “Indemnification for moral damages by virtue of the delay in delivery of the autonomous units to the prospective purchasers”.