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New Guidance from the STJ Limits Retention to 25% and Changes Negotiation Between Buyers and Builders in Contracts for Off-Plan Properties.
The off-plan property has returned to the center of legal debate. According to the portal Infomoney, in a decision made at the end of September, the Superior Court of Justice (STJ) ruled that, in case of termination initiated by the buyer, the builder cannot retain more than 25% of what has been paid and that the refund must be immediate without the need to wait for the completion of the construction. For consumers, it is a rearrangement of power; for the sector, a course correction that will require new sales and post-sales practices.
Although the decision does not have general binding effect, it creates a strong benchmark for courts across the country and tends to standardize rulings in similar cases. In practice, those who withdraw from an off-plan property now have a clear parameter for negotiation and, if necessary, seek Justice with greater predictability.
What Exactly Did the STJ Decide
The Court defined two central points: maximum retention limit of 25% of the total amount disbursed by the buyer and immediate restitution of the balance (up to 75%) in case of termination by the buyer’s will.
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This repositions the consumer, who frequently faced higher retentions and installments being returned over years.
The Court’s interpretation places the Consumer Defense Code (CDC) at the center of the analysis.
The understanding is that retention should cover reasonable costs of the builder such as administrative and commercial expenses, without turning into disproportionate punishment for those who did not enjoy the property.
What Happens to the Termination Law (Law 13.786/2018)
The Termination Law provided for retention scenarios of “up to” 50% in specific cases, which many developers came to treat as a mandatory floor.
With the new guidance from the STJ, “up to” returns to meaning ceiling and ceiling is not an automatic rule. The retention must be moderate and justified, under penalty of abuse.
Another sensitive point was the refund only at the end of the construction, which in practice financed the cash flow of the projects with the money of those who withdrew.
The Court understood that this disrupts the contractual balance when there is no concrete counterpart for the consumer.
Impact on Buyers and Builders
For the buyer, the relief is immediate: up to 75% is refunded promptly, mitigating financial damages for those who, due to unemployment or budget constraints, had to withdraw from the off-plan property.
“Losing everything” is no longer a plausible threat in most cases.
For the market, the message is clear: retention policies need to be calibrated and refund flows, professionalized.
Builders that rely on high retentions to balance their accounts will need to review construction financing models, strengthen credit analysis, and improve transparency in pre-contract agreements.
And What About Brokerage Fees, Installments, and Other Costs?
Practical cases showed losses exceeding 50%, reaching 60% or more when non-refundable brokerage fees and other charges were added.
The STJ’s guidance dissuades summed retentions that exceed reasonableness, but does not automatically make all expenses refundable.
The order of the day is proportionality: essential and proven cost items may be included in the retention; excessive penalties and duplicate charges are likely to be dismissed.
Standard clauses imposing high losses should be reevaluated so they do not conflict with the CDC.
Step by Step to Negotiate the Termination
Before signing any agreement, organize all documentation: contract, payment receipts, involved brokers, addendums, and communications.
Demand a detailed simulation of the refund, with calculation memory: how much was paid, what will be retained (and why), and when the amount will be credited.
If the proposal does not refund at least 75% immediately, do not accept in haste. Negotiate based on the new understanding and, if the impasse persists, seek legal support to formalize the request.
The first proposal is rarely the best; your benchmark now is the STJ’s guidance.
What Changes in the Dynamics of Contracts Moving Forward
The trend is for contracts to be clearer about refund deadlines, objective justifications for retention, and less punitive mechanisms for consumers who withdraw.
Solid ventures should internalize the decision and adjust cash flow to not depend on the money from terminations.
For buyers, the critical and prior reading of the contract becomes even more strategic: ask how much the company retains upon withdrawal, how it calculates expenses, and what the real deadline is for refunding. Clarity is now a competitive advantage for both sides.
Quick Questions to Help in Decision-Making
I want to withdraw: when will I get paid? According to the STJ’s guidance, immediately nothing should be expected until the construction is finished.
How much can the builder retain? Up to 25% of the total paid, with a reasonable justification.
And if the company offers less than 75% now?
Negotiate based on the decision; if it persists, litigate.
Does the decision automatically apply to all cases? No, it is not binding, but strongly guides lower instances and is already being used as reference.
For those thinking of withdrawing from the off-plan property, the game has changed: 25% retention limit and immediate refund place the consumer on fairer ground.
But the contract still requires attention and technical negotiation makes a difference in the amount that comes back into your pocket.
Have you gone through a termination of an off-plan property? Did the builder offer less than 75% in the first offer? How long did it take to get paid? Share your experience in the comments your account helps other buyers negotiate better and pressures the market for more transparent practices.
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