In every contract of real estate purchase and sale there is a penal clause establishing the percentage of the fine that the buyer will pay in case of cancellation or absolute default of the obligation. The percentage referring to this penalty has always been a divergent issue in the Judiciary. It is not uncommon to find decisions applying different percentages to similar situations.
The aforementioned Law establishes that if the acquirer cancels the contract entered into exclusively with the property developer, either by agreement termination or by absolute default of his obligation, he will be entitled to receive the amounts already paid directly to the property developer, updated according to the index foreseen for the monetary correction of installments of the property price.
However, of the restated amount, the acquirer shall bear the full amount of the brokerage commission and the standard penalty, not to exceed 25% of the amount paid. This penalty may be required by the developer regardless of claiming injury.
In addition, if the acquirer uses the unit, it will bear the payment of taxes, quotas of condominium, and an amount equivalent to 0.5% of the value of the contract, “pro rata die” corresponding to the fruition of the property among other charges.
A different situation occurs when the merger is subject to the equity method. According to the Institute of Real Estate Registry in Brazil, the main purpose of this regime is to ensure the immediate restoration of the individual assets of the purchasers of an ideal fraction linked to the autonomous unit under construction or to be built in the event of the property developer’s breakdown, giving greater security and confidence in the real estate market.
In this case, the property developer will refund the amounts paid by the acquirer after deduction of the amounts mentioned above, updated based on the index contractually established for the monetary correction of the parcels of the property price, within a maximum period of 30 days after the dwelling or equivalent document issued by the competent municipal public agency. And, in this case, the conventional penalty may be up to the limit of 50% of the amount paid.
It has already been discussed whether the legal provision of the new law on the conventional fine would not face a provision of the Consumer Protection Code, Law 8.078 / 90, which provides for the right of full restitution of what is paid by the consumer, besides not accepting that the consumer is placed at a disadvantage.
However, the Judiciary was already guaranteeing the property developers the applicability of the conventional fine with a percentage varying between 10% and 25% on the amounts paid. In any case, we will have to wait for the first decisions of the Judiciary on the new rule.
Juliana G. Meyer Gottardi is partner at Pacheco Neto Sanden Teisseire Law Firm.
Valdirene Laginski was associate at Pacheco Neto Sanden Teisseire Law Firm.