The Federal Law No. 13,786/2018 (Law No. 13,786), which amends the Federal Law No. 4,591/1964 (Law on Real Estate Development) and the Federal Law No. 6,766/1979 (Land Parceling), was published on December 28, 2018, aiming to regulate the termination of purchase and sale commitments related to real properties under real estate development regime or land subdivision regime. The referred law should help to reduce judicial conflicts regarding the termination of this type of agreement, since, among other changes, it sets the parameters of the penalties to be imposed in this case.
With this respect, it should be pointed out that, in the case of purchase and sale commitments of real properties subject to real estate development regime, in the event of termination of the agreement due to default of the acquirer, the developer must refund the amount paid, with the deduction of (i) the brokerage commission; (ii) the standard penalty, which shall not exceed 25% of the amount paid; and (iii) other incidental expenses if the buyer has enjoyed the real property. The developments that are subject to the segregate estate regime (patrimônio de afetação), the penalty limit is increased to up to 50% of the amount paid by the acquirer.
On its turn, the commitments for the purchase and sale of urban lots, in the event of contractual resolution by the acquirer, the amounts paid must be refunded by the developer, and the following expenses may be discounted: (i) amounts corresponding to the fruition of the real property, if applicable; (ii) the amount due by penalty clause and administrative expenses, limited to a discount of 10% of the agreement value; (iii) applicable moratorium charges; (iv) applicable taxes charges, condominium, associative or similar contributions, among others; and (v) the brokerage commission, provided that it is integrated in the real property price.
The changes are applicable to the commitments for purchase and sale of real properties entered into after the publication of Law No. 13,786.