Eviction is an important legal concept in Brazilian law, particularly relevant in real estate purchase and sale contracts. It occurs when a buyer is deprived, wholly or partially, of a purchased asset due to a prior right held by a third party, which was unknown or not respected at the time of sale.
In such cases, the law protects the buyer by granting the right to a refund of the paid amount, as well as compensation for damages incurred. This article explores the essential aspects of eviction, the buyer's rights, and the seller's obligations, aiming to clarify the guarantees that protect parties involved in real estate transactions.
1. Concept of Eviction and Its Application in Real Estate Contracts
Eviction refers to the loss of a purchased asset, wholly or partially, by judicial decision in favor of a third party who can prove a legitimate right to the asset. In real estate, eviction may occur, for example, when the property sold has hidden title defects, such as incorrect ownership records or undisclosed liens, mortgages, and tax debts that were not duly disclosed to the buyer.
The Brazilian Civil Code addresses eviction in Articles 447 to 457, establishing rights and duties governing the purchase and sale of assets. Should eviction occur, the buyer has the right to a refund and compensation, which aims to ensure the security of real estate transactions and provide the buyer with legitimate possession of the purchased asset.
2. Seller’s Obligations in the Context of Eviction
In a purchase and sale contract, the seller is obligated to deliver the property to the buyer free from any defects or liabilities that could compromise possession of the asset. The seller’s duties include:
Ensuring the property’s legitimacy: This includes ensuring that the property is free from liens, legal or administrative issues, and that the title is legitimate and not subject to future claims.
Indemnifying in case of eviction: The seller must bear the losses suffered by the buyer if the buyer is deprived of the asset due to a judicial decision in favor of a third party.
Furthermore, the seller must transparently disclose any restrictions or disputes involving the property. Failure to fulfill this obligation may result in the seller's liability for eviction, leading to the payment of due compensations.
3. Buyer’s Rights in Case of Eviction
If the buyer is deprived of the property due to a third party's prior right, they may seek redress from the seller. The buyer’s rights include:
Refund of the amount paid for the property: The buyer has the right to receive the full amount invested in the purchase if they lose the property due to eviction.
Compensation for material damages: If the buyer has made improvements to the property or invested additional funds, they may be compensated for the value of these enhancements.
Moral damages: In cases where the loss of the property causes emotional suffering or significant distress, the buyer may, depending on the circumstances, claim compensation for moral damages.
To be entitled to these compensations, the buyer must notify the seller of the judicial process contesting their possession. This notification, known as denunciação da lide (third-party complaint), allows the seller to participate in the process and present a defense, which is essential for properly assessing eviction liability.
4. Exclusions of Seller’s Liability
There are situations where the seller may not be held liable for eviction:
Eviction due to the buyer’s fault: If the buyer was previously aware of a title defect and proceeded with the purchase regardless, the seller may not be held liable for eviction.
Risk purchase: In some situations, the purchase and sale contract may stipulate that the buyer assumes full risk for the transaction, which exempts the seller from liability for any potential losses. This clause, known as a non-eviction pact, must be explicitly and clearly accepted by the buyer to be valid.
5. Procedures for Buyer’s Defense: The Third-Party Complaint
When the buyer is subject to a judicial process that seeks to recover the property's possession in favor of a third party, they must file a third-party complaint against the seller.
This procedure enables the seller to be included in the action and offers the seller an opportunity to contest the third party's right, thereby reducing the buyer's risk of loss. If eviction is confirmed, the seller’s involvement in the process facilitates the buyer's compensation.
6. Consequences of Eviction for Seller and Buyer
The consequences of eviction are serious, as it not only causes financial loss to the buyer but can also lead to prolonged legal disputes. From the seller's perspective, eviction constitutes a contractual violation that may result in the obligation to fully compensate the buyer for the damages suffered, as well as any legal fees and court costs.
For the buyer, in addition to recovering the purchase price and investments made, the goal is to enjoy the property’s possession without the threat of being deprived of the asset by third parties. It is, therefore, advisable for the buyer to check the property's documentation to ensure its regularity before making the purchase.
Conclusion
Eviction in real estate purchase and sale contracts involves not only the buyer and seller but also third parties who may hold legitimate rights over the property. The protection mechanisms established in the Civil Code aim to provide the buyer with a secure purchase and protect the seller from potential liability, provided that the seller acts diligently and transparently.
The seller’s responsibility to prevent the buyer from being harmed is clear, and the buyer should pay close attention to the documentation and background of the property. With proper compliance with contractual obligations and verification of essential information, the likelihood of eviction can be reduced, ensuring a safer and fairer real estate transaction for both parties.