The Court rules that a real estate buyer does not need to be informed of the obligation to pay for brokerage services – the brokerage fee – before the date of signing the contract. It may be on the same day of signing.
According to this understanding, the Consumer Protection Code (CDC) and Repetitive Appeal 1,599,511, judged by the Second Section of the STJ (Theme 938), only require that this information be clear, but do not establish a prior deadline.
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The case judged concerns a consumer who, on the day of signing the purchase and sale contract, was informed that he would be the one responsible for paying the brokerage fee. In the action, the property buyer alleged that the charge would be illegal and abusive, and that he did not have the possibility of refusing payment.
At first instance, the judge sentenced the brokerage firm to return to the buyer around R$ 8.6 thousand referring to the commission. The Court of Justice of São Paulo upheld the judgment on the grounds that the fact that the plaintiff was informed of the transfer of the obligation only at the moment of entering into the commitment violated the duty of prior communication.
Consumer law
In the appeal to the STJ, the brokerage firm pointed out a violation of articles 927, 985, and 1,040 of the Code of Civil Procedure and of article 396 of the Civil Code. The appellant stated that the payment of the commission is the responsibility of the buyer, since he was duly notified, it not being necessary to inform him on a date prior to the signing of the contract.
The rapporteur of the special appeal, Justice Isabel Gallotti, highlighted that the provision of all adequate information about products and services is a duty imposed on the supplier and a right of the consumer. However, she stated that, in this case, the consumer was not harmed.
Brokerage fee
According to the rapporteur, the parameters established by the CDC and the understanding of the STJ in REsp 1,599,511 validate the transfer of the payment of the brokerage fees to the buyer. Articles 6, 31, 46, and 52 of the CDC – she added – determine that the total price of the real estate unit be specified, with the amount of the brokerage commission highlighted.
Irrelevant
For the justice, however, the coincidence in the dates of the communication about the transfer of the fee and of the entering into of the contract is irrelevant. The only requirement, she underlined, is that the buyer be informed, regardless of the day.
According to her, the requirement that “the total price of the acquisition of the independent unit be previously informed” – as set forth in the thesis of the repetitive appeal – “does not mean that the date of signing the document in which the amounts of the total price of the real estate unit are specified, with emphasis on the amount of the commission and other charges, has to be a different day, prior to the day of signing the purchase and sale.”
“Nothing prevents it from being on the same day as the entering into of the contract, when, aware of the requirement, the consumer may give up carrying out the transaction if he does not agree with the terms proposed by the seller,” the justice concluded in granting the brokerage firm’s appeal.
Source: STJ
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