In Brazil, the real estate market is one of the most dynamic and complex sectors, reflecting the diversity of interests and needs that characterize the country. With urban expansion and economic growth, the number of real estate transactions has increased, bringing to light various legal issues that frequently result in disputes. These conflicts can range from non-compliance with contracts to issues of possession and construction defects, directly affecting buyers, sellers, tenants, and builders.

As the sector evolves, real estate disputes become increasingly complex, requiring in-depth knowledge of the current legislation. Recent legal changes, such as the Law on Rescission (Lei do Distrato) and amendments to the Civil Procedure Code, have introduced new parameters and mechanisms for resolving these conflicts, aiming for greater clarity and legal security for all parties involved.

In this context, understanding the main causes and legislative changes is crucial for navigating the complexities of real estate litigation in Brazil.

– Non-compliance with contracts: Failure to pay rents in lease contracts or installments on the price outlined in purchase and sale agreements.

In cases of non-payment, condominium fees, or other contractual obligations by the tenant, such defaults may lead to eviction actions.

If there is non-payment of the agreed installments, such non-compliance can lead to contract termination and repossession of the property by the seller.

– Construction defects: Problems with the quality of construction, such as structural defects or inadequate finishes, often result in disputes between buyers and construction companies or developers.

In this regard, the Brazilian Civil Code, in Articles 618 and 619, establishes the responsibility of the builder for defects in the work for a period of five years after the delivery of the property. The jurisprudence of the Superior Court of Justice (STJ) is also firm in stating that construction defects detected within the legal timeframe must be repaired by the builder, according to REsp 1.138.591/SP.

– Disagreements over contract conditions: Differences in the interpretation and fulfillment of contract clauses:

Abusive clauses: The existence of abusive clauses in adhesion contracts, such as those used in purchase and sale agreements for off-plan properties, can be legally challenged based on the Consumer Protection Code (Código de Defesa do Consumidor – CDC).

Law No. 8.078/1990: The Consumer Protection Code (CDC) protects consumer rights, including the nullification of abusive contractual clauses, as outlined in Articles 51 and 53.

Promises of sale and purchase: Failure to fulfill the obligations established in preliminary contracts can lead to actions for enforcement or contract termination.

– Possession issues: Conflicts over the occupation or possession of properties are frequent, especially in urban and rural areas facing land regularization problems:

Adverse possession (Usucapião): Disputes arise when one party tries to obtain ownership through adverse possession and faces resistance from the registered owner.

Here, Articles 1.238 to 1.244 of the Civil Code regulate adverse possession, allowing the possessor to acquire ownership after a specified period of continuous and uninterrupted possession.

Recovery of possession (Reintegração de posse): Actions filed by owners or possessors seeking to recover property from third parties who occupy it unlawfully, with procedures established by Articles 560 to 566 of the Civil Procedure Code.

 

Legislative changes in Real Estate Litigation

Law on Rescission (Lei nº 13.786/2018): Regulates penalties and conditions for the rescission of purchase and sale contracts for off-plan properties, providing greater clarity and legal security.

Labor Reform (Lei nº 13.467/2017): Has an indirect impact on the real estate sector, particularly in commercial leasing issues, due to changes in the flexibility of labor contracts.

Amendments to the Civil Procedure Code (CPC/2015): Introduced mechanisms like mediation and conciliation, encouraging extrajudicial dispute resolution.

Real estate disputes in Brazil reflect the dynamic nature of the sector, requiring a detailed understanding of the issues involved and recent legislative changes. As the market continues to evolve, the ability to anticipate problems and adopt preventive strategies becomes increasingly important to minimize disputes and ensure the security of transactions.

With the support of specialized legal counsel and careful attention to changes in the legal landscape, it is possible to effectively address the challenges of real estate litigation, promoting a safer and more reliable business environment for all parties involved.

In this context, BNS’s expertise in real estate law stands out, offering specialized support to face challenges and ensure that clients’ rights are protected.

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