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Incorporation and Allocation: Effects and Guarantees to the Entrepreneur and Buyer and/or SPE




This article aims to analyze the effects and guarantees of incorporation and allocation in comparison to a Special Purpose Entity (SPE), highlighting the difference between these modalities in relation to communication with the main company (head office) of the entrepreneur in cases of future execution, whether due to the property under construction or debts of the entrepreneur for other obligations, including bankruptcy situations. For this, the legal foundations, case law and the understanding of the Superior Court of Justice (STJ) on the subject will be addressed.


Incorporation and allocation and SPEs are institutes used in the real estate market, seeking to provide guarantees and security to property developers and buyers. A comparative study of these institutes will be carried out, emphasizing their differences and analyzing their legal support through jurisprudence.

2. Embedding and Affectation: Effects and Positivity

2.1 Legal Rationale


Law No. 4591/1964 (Real Estate Development Law) and Law No. 10931/2004 (Fiduciary Alienation Law) are the main legal bases on which incorporation and allocation are based. These laws grant legal effects and guarantees to entrepreneurs and buyers, such as individualization of assets and non-seizability of affectation assets.


2.2 Jurisprudence Seeking to support the analysis of the positivity of incorporation and allocation, it is essential to consider the divergences. The court has consolidated understandings related to the protection of the rights of buyers in cases of default or bankruptcy of the entrepreneur. Among the main jurisprudential decisions, as recommended by article 833, item XII, however, it must be weighed against the specific case.


3. Special Purpose Entity (SPE)

3.1 Concept and Characteristics


The SPE is a management modality used to operate specific enterprises, separating them from the entrepreneur's main company. SPEs have their own characteristics, such as the separation of assets and autonomy in relation to the main company.


3.2 Comparison with Incorporation and Allocation It is essential to highlight the differences between SPEs and incorporation and allocation.


While incorporation and allocation are based on specific legislation, SPEs are governed by contractual and statutory provisions. In addition, communication with the entrepreneur's main company is a relevant aspect to be considered. In the case of incorporation and allocation, the main company is protected by asset individualization, preventing problems related to other projects from impacting on a given project. However, in SPEs, the separation of assets may be less robust, allowing any debts or obligations of the main company to directly affect specific projects.


Conclusion:


The adoption of incorporation and allocation, as provided for in Brazilian legislation, provides effects and guarantees to both the entrepreneur and the buyer of real estate, aiming to provide legal certainty to the contractual relationship. The analysis of jurisprudence in relation to these modalities is relevant to base the performance of the actors involved in the real estate market. On the other hand, the use of an SPE can bring certain advantages in terms of management, but it is important to consider its limitation in relation to communication with the entrepreneur's main company in cases of future execution. Understanding the differences between these modalities is essential for proper and conscious decision-making by both entrepreneurs and property buyers.



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