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STJ Confirms That Condominium Fees Can Only Be Charged After Key Handover; Advance Charges Are Abusive and Must Be Returned to the Buyer.
Those who buy a property off-plan or newly built are often surprised with condominium fee bills even before receiving the keys. This practice, common in the real estate market, has gone to court — and the Justice has been clear: the responsibility lies with the builder until the effective handover of the property to the buyer. The decision reinforces a fundamental consumer right: one can only be charged for what they actually use. Without possession and without means to use the common areas, the buyer should not bear the condominium maintenance costs.
What the Law Says About the Obligation to Pay Condominium Fees
The Civil Code (art. 1.315) establishes that each co-owner must contribute to the expenses in proportion to their ideal share. But this presumes that they are already a co-owner in practice, that is, that they have received the property.
The Law No. 4,591/1964 (Real Estate Incorporation Law) also reinforces that the builder’s responsibility persists until the effective delivery of the unit.
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In other words: as long as there is no key handover, the buyer has neither possession nor means to enjoy the property. During this period, the obligation remains with the builder.
The Position of the Superior Court of Justice (STJ)
The STJ has already settled the issue. In the judgment of REsp 1.345.331/RS, the Court understood that:
- The obligation to pay condominium fees arises only with the taking of possession.
- The buyer cannot be held responsible for previous expenses.
- Advance charges are considered abusive.
This understanding has been followed by state courts across the country, protecting thousands of consumers from abusive practices.
Cases Judged in the Courts
- TJSP: annulled the condominium fee charge from buyers who had not yet received the keys, determining the double return of the amounts paid, corrected and with interest.
- TJMG: decided that contract clauses imposing payment of condominium fees before possession were abusive, applying the Consumer Protection Code.
- TJRS: confirmed that only the formal handover of keys characterizes possession, and without it there is no obligation to pay fees.
These examples show that the jurisprudence is firm and favorable to the consumer.
Financial Impact on Buyers
The impact of this decision is huge. Imagine a property with a monthly condominium fee of R$ 600:
- If the builder delays delivery by 12 months and charges the fee from the buyer, the loss would be R$ 7,200.
- In cases of large developments, with fees over R$ 1,000, the amount can easily exceed R$ 15,000.
With the confirmation from the Justice, these amounts can be recovered, and in some cases even doubled, as provided in the Civil Code in art. 940 for undue charges.
How Buyers Can Protect Themselves
To avoid losses, buyers should:
- Check the contract: verify if there is a clause providing for advance charges.
- Keep all receipts: bills, emails, and correspondence from the builder.
- Negotiate before paying: communicate in writing that the charge is undue.
- Seek legal advice: in case of the builder’s insistence, file a legal action.
In most cases, the Justice has ruled in favor of the consumer.
The Duty of Builders
For builders, the decision represents a warning. They must:
- Comply strictly with delivery deadlines.
- Assume condominium expenses until the keys are delivered.
- Avoid abusive clauses that can be annulled in court.
Furthermore, insisting on illegal charges can result in not only the return of amounts but also compensation for moral damages, if the buyer’s embarrassment is proven.
Justice Reinforces: Only Those Who Have Possession Pay
The message from the Justice is clear: the obligation to pay condominium fees arises with possession, and not before. Until then, the builder is responsible.
This decision strengthens consumer protection, prevents abuses in the real estate market, and ensures that the buyer only bears expenses when they truly have the means to enjoy the property.
For thousands of Brazilians, the recognition of this right means the return of amounts paid unduly and more security in one of life’s biggest investments: buying a home.
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