The Jurisprudence Secretariat of the Superior Court of Justice (STJ) published, on September 21, issue no. 110 of its Jurisprudence in Theses, with the theme Purchase and Sale Promise Contracts of Real Estate – II. Among the disseminated theses, two deserve special mention.

The first establishes that the compensation granted for loss of profits due to a delay in the delivery of a property, object of a purchase and sale agreement, will be the amount equivalent to the rent that the buyer would no longer pay or would earn if he received the work on time.

As it is known, delays in the delivery of construction work are common, and these delays, often unjustified, become a major inconvenience for both the buyer, who finds himself paying the installments of the purchase and, many times, paying rent for the property where he lives.

The STJ, in the publication of this issue No. 110 of Jurisprudence, brings the dominant thesis when it comes to the subject, understanding that it is up to the buyer the right to claim compensation for lost profits, referring to the amount of rent he would have to pay due to the delay in the delivery of the property, valid not only in the case of a purchase and sale promise contract, but in the purchase and sale itself.

The second thesis, on the other hand, defines that, in the case of rescission of contracts involving the purchase and sale of real estate due to the buyer’s fault, it is reasonable that a retention of 10% to 25% of the amounts paid should be arbitrated in favor of the seller, depending on the circumstances of each case, and evaluating the losses sustained.

It is unquestionable that the consumer has the right to terminate the purchase and sale agreement of the property, even if without justification. However, in order to minimize the contractual imbalance resulting from the rupture of the pact, it is essential that the promissory seller withholds part of the amount paid by the promissory buyer.

Thus, the STJ, by divulging this thesis, tries to soften the issue of the rescission of real estate contracts, which, due to the absence of regulations establishing specific rules about the rescission of real estate contracts, have become a major obstacle faced by developers, who end up having to face the judicialization of this matter on a daily basis.

The DDSA’s real estate team is at your disposal for further clarifications and assistance in cases involving real estate contracts.

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