The buyer's withdrawal from real estate development
Despite the purchase and sale promises made within the scope of real estate developments being, by law, irreversible (article 32, paragraph 2 of Law 4,591/64), paradoxically the issue of cancellations is still one of the most controversial in the real estate market .
The objective of this article is to offer four proposals, de lege lata , to make the Consumer Protection Code (CDC), the Incorporation Law (Law 4,591/64) and the Civil Code on the subject compatible. Such proposals, concessa venia , would allow the evolution of the STJ's jurisprudence, especially regarding statement 543 of its summary and more particularly regarding the compatibility between the installment payment of the refund in case of withdrawal and the CDC.
1. The consumer can unilaterally cancel B2B Lead the purchase and sale promise within the same grace period in which the developer can withdraw from the incorporation.
The CDC provides for the absolute nullity of a contractual clause that authorizes the supplier to cancel the contract unilaterally, without equal right being granted to the consumer (article 51, XI).
In turn, article 34 of Law 4,591/6 provides that the “developer may set, to carry out the incorporation, a grace period, within which it is lawful to withdraw from the project” (article 34).
The prediction must be interpreted as a legal hypothesis of unilateral termination. This is the developer's vested right. However, combining this right guaranteed by the Incorporation Law with the CDC rule that nullifies the rule that allows withdrawal only to the supplier (article 51, XI), there is an apparent antinomy. The developer's right guaranteed by law inserted in the contract would be illegal under the CDC, unless the same right was also attributed to the consumer .
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The developer must be given the legal right to withdraw from the merger, with there being no a priori illegality in such a prerogative in light of the CDC system. On the contrary, it is a guarantee for the consumer himself, who will not be frustrated in his expectation of receiving the contracted real estate unit when the project does not become economically viable within the stipulated waiting period. This, in fact and not infrequently, can actually occur, either because the launch did not indicate good sales expectations, or due to supervening facts, such as the developer's difficulty in obtaining credit, among several other factors 1 .
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