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The Termination Law Established Maximum Penalty Percentages That Construction Companies Can Retain in Case of Buyer Withdrawal, Protecting Consumers and Bringing Clear Rules to the Real Estate Market
The termination law (Law No. 13.786/2018) brought legal security to negotiations for properties under construction and protection to consumers who, for some reason, cannot continue paying the installments of the financing. Before it, contract terminations were marked by long judicial disputes and considered abusive charges.
Now, construction companies have legal limits to retain part of the amount paid by the buyer, with maximum percentages defined according to the type of undertaking. The rule aims to balance contractual relationships, avoiding excessive losses and standardizing deadlines and rules for refunding money.
How The Termination Law Works
The termination law establishes that, upon withdrawing from a property under construction, the buyer is entitled to receive back part of what has been paid, minus a proportional fine.
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This fine varies according to the legal regime of the project: whether or not the undertaking has separated assets, a mechanism that separates the assets of the construction company from those of the ongoing work.
In projects without separated assets, the construction company can retain up to 25% of the amounts paid.
In projects with separated assets, the penalty can reach 50%, as these projects require greater financial guarantees and independent accounting from the company.
Deadlines for Refund of Money
The law also defined deadlines for refunding the amounts due to the buyer, preventing refunds from being indefinitely postponed.
In projects without separated assets, the deadline is up to 180 days after the termination of the contract.
In projects with separated assets, the refund must occur up to 30 days after the issuance of the occupancy permit, or equivalent document.
The goal is to prevent unjustified delays and provide predictability to both the buyer and the developer, especially in cases of withdrawal motivated by financial difficulties.
Consumer Rights and Special Situations
The termination law also protects the consumer in cases of delays in the delivery of the work.
If the construction company delays by more than 180 days beyond the contractual deadline, the buyer can terminate the contract and receive 100% of the amounts paid, including the brokerage fee.
If preferred to wait for the completion of the work, the buyer is entitled to compensation of 1% per month on the amount paid, calculated from the end of the tolerance period.
Furthermore, purchases made outside the construction company’s headquarters, such as at sales stands, allow withdrawal within seven days, with full and immediate refund.
The Role of the Judiciary and the Position of the STJ
Even with the legislation in force, the Judiciary continues to play an important role in protecting the buyer.
The Superior Court of Justice (STJ) has reinforced that the maximum retention cannot exceed 25% of the amounts paid, considering any clause that stipulates a higher percentage as abusive.
Additionally, the STJ has already ruled that the refund can be immediate, even before the completion of the work, and that construction companies cannot impose conditions that hinder the receipt of money.
These decisions consolidate the understanding that the buyer should be treated with contractual balance, without excessive disadvantages compared to the economic power of developers.
Impact of the Law on the Real Estate Market
Since it came into effect, the termination law has reduced judicial disputes and brought predictability to the real estate sector.
According to data from the Brazilian Association of Real Estate Developers (Abrainc), the number of terminations fell by more than 30% in 2019, the first complete year after the approval of the rule.
For companies, the rule made it easier to plan cash flows and construction schedules, as the legislation set clear criteria for retention and refund.
For the buyer, the law represented a barrier against abusive clauses, which previously varied widely from contract to contract and often resulted in disproportionate losses.
Transparency in Contracts and Duty to Inform
Another important advancement was the mandatory summary table, which must be included at the beginning of every purchase and sale contract for real estate.
In it, the construction company must inform the total price of the property, down payment amounts, payment methods, delivery deadlines, penalties, and consequences of termination.
This requirement prevents surprises and forces the seller to present the conditions clearly and objectively, making the relationship more transparent and balanced.
In case of absence of this information, the contract can be legally challenged.
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