
This article examines contract termination in Brazilian real estate law, addressing the changes introduced by Law No. 13,786/2018, known as the "Distrato Law." It analyzes the effects of termination before and after 2018, including the phased return of values, retention of amounts, compensation for occupancy fees, and compensation for improvements. Additionally, it discusses the alteration of provisions in Laws No. 4,591/1964 (Real Estate Incorporations Law) and No. 6,766/1979 (Land Subdivision Law), as well as fiduciary alienation. It is based on current legislation, Superior Court of Justice (STJ) case law, and contracts between parties, including individuals, real estate companies, and developers.
Contract termination is a central issue in real estate law, affecting both buyers and sellers. This article explores the effects of contract termination before and after the introduction of Law No. 13,786/2018, known as the "Distrato Law." The analysis includes the main legislative changes and their implications for the parties involved, covering real estate ventures, land subdivisions, incorporations, and fiduciary alienation.
Federal Constitution of 1988
The Federal Constitution guarantees the right to property and freedom to contract, according to the principles of the social function of contracts and objective good faith.
Brazilian Civil Code
The Civil Code (Law No. 10,406/2002) regulates contract termination in Articles 421 to 426, establishing the general principles applicable to contractual relations.
Law No. 13,786/2018
Law No. 13,786/2018, also known as the "Distrato Law," introduced specific rules for the termination of real estate purchase and sale contracts, focusing on real estate ventures, land subdivisions, and incorporations. The law amended provisions of Laws No. 4,591/1964 (Real Estate Incorporations Law) and No. 6,766/1979 (Land Subdivision Law).
Real Estate Incorporations Law (Law No. 4,591/1964)
The Real Estate Incorporations Law regulates the incorporation of real estate and defines the responsibilities of developers. The Distrato Law amended some provisions to include more specific rules on contract termination.
Land Subdivision Law (Law No. 6,766/1979)
The Land Subdivision Law regulates the subdivision of urban and rural land into lots, establishing rules for their commercialization. The Distrato Law introduced provisions that facilitate contract termination in these contexts.
Fiduciary Alienation (Law No. 9,514/1997)
The Fiduciary Alienation Law establishes rules for real estate credit granting and property transfer as collateral. Although the Distrato Law did not directly amend the Fiduciary Alienation Law, its provisions impact fiduciary alienation contracts, especially regarding contract termination.
Effects of Contract Termination
Before 2018
Before Law No. 13,786/2018, contract termination in the real estate sector was mainly regulated by the Civil Code and specific contractual provisions. The main consequences included:
Return of Values: In case of termination, the buyer was entitled to the return of payments, usually in full or with moderate retention, depending on contractual clauses.
Retention: Retention was applied to cover administrative expenses and other costs. STJ case law varied, but generally allowed retentions of 10% to 25% of payments.
Improvements: Compensation for improvements made by the buyer in the property, depending on contractual specifications and good faith of the parties.
Compensation and Occupancy Fee: Compensation and occupancy fees were less regulated, left to the parties and judicial decisions.
After 2018
With the introduction of Law No. 13,786/2018, there was more detailed regulation on contract termination:
Phased Return: The law allows phased return of payments by the buyer, up to a limit of 12 monthly installments.
Retention: Retention was explicitly regulated, allowing the seller to retain up to 50% of payments by the buyer, depending on the case.
Compensation and Occupancy Fee: Compensation and occupancy fees became more clearly defined, allowing the seller to charge up to 0.5% of the contract value per month of occupancy of the property by the buyer.
Improvement Compensation: Compensation for improvements made on the property must be expressly provided for in the contract, and their absence may lead to loss of compensation rights for the buyer.
Case Law and STJ Position
Relevant Decisions
The STJ has been consistent with current legislation, applying the provisions of Law No. 13,786/2018 to balance the interests of the parties. Notable decisions include:
REsp 1,729,593/SP: The STJ reaffirmed the validity of retention clauses, provided they are not abusive, and recognized the possibility of phased return under the new law.
REsp 1,599,511/SP: Decision that consolidated case law on the application of occupancy fees and compensation in real estate purchase and sale contracts.
Rights and Duties of the Parties
Buyer's Rights
Return of Values: Right to the return of payments, with retention as provided for in law and the contract.
Improvement Compensation: Right to compensation for improvements made, if provided for in the contract.
Single or Phased Payment: Right to choose between a single payment or phased return, depending on the contract and legislation.
Seller's Rights
Retention of Values: Right to retain a percentage of payments, as stipulated in Law No. 13,786/2018.
Compensation and Occupancy Fee: Right to charge occupancy fees and compensation for property use by the buyer.
Contractual Clauses: Right to include specific clauses in the contract, provided they are not abusive and comply with current legislation.
Effects of Contract Termination
Adjustment of Obligations
Contract termination results in significant financial adjustments, requiring the return of payments by the buyer and the application of retentions and occupancy fees by the seller.
Financial Impact
Contract termination can have a significant financial impact on both parties, requiring new financial planning and adaptation to the new conditions imposed by termination.
Legal Precedents
Judicial decisions applying Law No. 13,786/2018 serve as precedents for future cases, influencing the interpretation and application of contractual clauses and legal provisions.
Conclusion
Contract termination in Brazilian real estate law has been significantly regulated by Law No. 13,786/2018, bringing greater clarity and legal certainty to the parties involved. The STJ's alignment with the new legislation has ensured balance in contractual relations, protecting the rights of buyers and sellers. Correct application of legal and contractual provisions is essential to avoid abuses and ensure justice in real estate transactions.