28/05/2013
Consumers seek Justice to defend their rights when buying real estate Autor: STJ
Article 54 of the Code of Consumer Protection (CDC) provides that in a contract of adhesion, the clauses are established unilaterally by the supplier of goods or services without the consumer to discuss or substantially modify its content.
The rule applies to the contract of sale made with contractor for the acquisition of property. This can be a problem for the consumer - if it does not know their rights and therefore does not know how to identify possible abuses by that.
Due to contractual problems or product, every day increases the number of lawsuits involving construction. Check the jurisprudence of the Supreme Court on the subject.
False advertising
According to the legal advisor of the Brazilian Institute for the Study and Protection of the Consumer Relations (Ibedec), Daniel Rodrigo dos Santos, many do not know that there is a document - memorial merger - that describes all the features of the property, including details such as brand , type and model of the floor, beyond the color of paint on the walls.
This document must be registered at the registry office before the sale of the property. With this, who are interested in buying it you can check before making the deal, if all items confer with the constant in the memorial.
The counsel mentioned another important aspect: the advertising carried by contractors is part of the contract. "Even if there are reservations about the projections artistic landscaping and furniture in public areas, these are promises that are part of the sales contract."
On this point, the Fourth Chamber of the Supreme Court dismissed a case in which residential units the project called Barra Meliá Confort First Class, in Rio de Janeiro, more than U.S. $ 2 million each, were sold as apart-service hotels (1,188 Resp. 442).
According to the Special Rapporteur of the resource, Minister Luis Felipe Solomon, "the principle of binding advertising reflects the imposition of transparency and good faith in commercial methods, advertising and contracts, so that the supplier of goods or services obliges on the exact terms of the advertising carried. "
Delay
One of the most common complaints encountered by the judiciary is the late delivery of properties sold in the plant. Several cases have reached the Supreme Court. According to data Ibedec, 95% of the works in Brazil are delivered late. "All agreements contain a clause, which we consider illegal, tolerance of 180 days in the delivery of the property," said Daniel Rodrigo dos Santos.
In September 2011, the Third Chamber of the Supreme Court ruled that the three-year delay in the delivery of a purchased property in the plant not configured damage. "A full refund of installments paid, duly corrected, is sufficient to compensate the losses. There is talk of moral damages in the species, "said Minister Massami Uyeda, rapporteur REsp 1,129,881.
The contract of sale with the builder, whose object was a property located in Rio de Janeiro, was signed in November 1994, with delivery scheduled for November 1997. The customer has paid more than £ 114,000 in benefits during the time waiting for delivery (which did not even happen).
Thus, filed a contract termination, combined with a request for full refund of installments paid, as well as compensation for moral and material damage. The trial court dismissed the application well founded, both in relation to termination, as the return of the plots and moral damage - set at £ 24,000. The Court of Rio de Janeiro reversed the sentence, just to shake the conviction in profits.
Damage
The STJ, the minister Massami Uyeda explained that the consumer is authorized by law to seek termination of employment, as well as the immediate return of the amounts paid. However, the minister did not agree with the ordinary instances in relation to damages.
For him, "unless exceptional circumstances that put the contractor in a situation of extraordinary distress or humiliation, no damage. This is because the unpleasantness inherent expectation frustrated due to contractual breach falls in daily trade and does not involve injury to honor or violation of human dignity. "
Deadline for claiming
According to Luiz Antonio Chamber Leal, the limitation period only begins with the science of infringement is not acceptable, so that it has the intention to be extinct even before this science (Prescription and Decadence: General Theory Civil Law).
At trial REsp 903 771, the Third Panel issued a decision in this regard. For ministers, the period that the homeowner has to sue against the builder for damages related to the safety and soundness of the work, begins to run from the science of constructive failure.
The property acquired in August 1982 began presenting problems 17 years later. In November 2002 (over 20 years after the acquisition), the resident filed a lawsuit against the builder, in which it requested material damage - since ceased to receive the amount corresponding to rents during the renovation of the building - as well as damage moral.
The magistrate first degree recognized prescribing vintenária the claim for damages. The Court of Sergipe desconstituiu the sentence, because it considered that the period would begin to run from the knowledge, the owner of the property, the fragility of the work.
In a special appeal to the Supreme Court directed the construction Celi alleged violation of Article 1245 of the Civil Code (CC), 1916, according to which, "in contracts for buildings or other constructions considerable, the contractor of materials and execution respond for five years, the strength and safety, so because of materials such as soil, except on this, if not thinking firm, warned in time by the developer. "
Warranty
According to the minister Paulo de Tarso Sanseverino, of the special rapporteur, the five years of the article is mentioned warranty and no prescription or decay. This means that, "since the fragility of the work is known in the five years following its delivery, he has [the property owner], pursuant to this Court Docket 194, 20 years to sue the builder."
However, the minister noted that there is an alternative available to the developer, which is independent of the knowledge of solidity and security issues have been given five years after delivery: the proof of the commission of an unlawful contract, ie, the poor performance of the work (Article 1056 of the CC/16).
"It is impossible to accept that the developer, before and at the exact time of the fragility of this knowledge, is unable to convey claim for damages against whom, guiltily, has caused this weakness," said Sanseverino.
Interest in the foot
A subject that has generated much divergence of understanding between members of the Classes of private law from the Supreme Court is charging compensatory interest before delivery of the keys to the property - the so-called "interest in the foot."
In September 2010, the Fourth Panel, in a unanimous decision, dismissed the special appeal filed by Queiroz Galvão Ventures, considering that "in contracts for the purchase and sale of property under construction, descabe charging compensatory interest before delivery of keys to the property, because in this period there is no capital lent to the construction of the prospective buyer, either use the pledged property "(Resp 670 117).
In June 2012, this understanding was amended by the Second Section of the trial embargoes divergence (EREsp 670 117) filed by the same company. In the grounds of appeal, the contractor had claimed that the decision of the Third Class in the opposite direction: "It is not abusive clause in the contract of purchase and sale of property considers the value of additional benefits, since the date of the celebration, as a condition for installment payment "(Resp 379 941).
The Minister Antonio Carlos Ferreira, who delivered the majority opinion in the Second Section, cited several precedents of the Court concluded that the legality of contracts clauses of the purchase and sale of property under construction providing for the recovery of compensatory interest before delivery of the keys .
He explained that, as a rule, the payment for the purchase of a property into production should be made in cash. However, the developer may offer certain term customer for payment through installments of the total amount, which may extend beyond the time allotted for completion of the work. To him, it represents a financial favor to the buyer.
"In such a case, as a result of this convergence of interests, the developer will be anticipating the resources that are the responsibility of the purchaser to ensure the smooth progress of the project," he said.
Payment of rent
Although the contract termination has occurred through the fault of the contractor (supplier), is due to the payment of rents, the purchaser (consumer), because of the time in which it occupied the property. This was the understanding of the Fourth Class at trial REsp 955,134.
The owner of a home built by Only Homes Real Estate Ventures filed a lawsuit against the builder, in which he argued that the property would have been delivered with a delay of more than two years and with many defects that become unfit for use. The company challenged the order of the author and asked that in case of contract termination, she was ordered to pay rent for the period in which he held the property.
In the first instance, the contract was terminated and the contractor has been ordered to repay the amounts received, monetary correction and interest. However, the request of the contractor (as the lease) was also upheld. Both appealed and the Court of Santa Catarina in the reformed sentencing. To this court, only rents would be due by the buyer to the seller that had broken the breach of contract.
The minister Luis Felipe Solomon, Special Rapporteur of the resource in the STJ, regardless of who caused the termination of the contract, is prohibited unjust enrichment. "The payment of the grant embodies simple retribution for enjoyment of the property during a certain interregnum temporal line that does not directly relate to damages resulting from the breach of covenant, but with the use of another's," he said.
Unfair
The Panel adopted another important understanding that trial. For ministers is abusive clause stipulating penalty if the consumer lives or contractual breach, but the vendor exempt in situations analogous breach of contract.
The contract of sale provided in the event of default by the consumer, imposition of penalty moratorium, retention of 5% as commission and brokerage of 2% as a service fee. According to Solomon, "predicting the incidence of contract penalty moratorium in the event of a default by the consumer, the same penalty shall focus, in rebuke to the supplier if this is the default or breach."
He mentioned that Article 4 of the CRC establishes the goals of the National Consumer Relations, and principles that must be respected, as harmony and balance in the relationship between consumers and suppliers. "Along with the requirement that the relationship between consumers and suppliers are balanced, there is also a basic right of equality in consumer contracts."
Property Size
According to the booklet produced by the consumer Ibedec, "although the apartment is sold as a unit, the calculation of the price is made in square meters, so any difference characterizes addiction and may be subject to compensation."
In October 2011, the Fourth Panel judged special feature of the company Paulo Octavio Investments against the judgment of the Court of Justice of the Federal District, which ordered it to pay compensation to a couple of customers for the difference of 1.45% in the area of the apartment purchased they (Resp 326,125).
According to the minister Isabel Gallotti, rapporteur in the case of ad sales measure (when the price is set by extension measure), "if the dimensions of the property sold does not correspond to those included in the deed of sale, the buyer has the right to require the completion of the area, the resolution of the contract or the proportional reduction in the price ".
However, she explained that there is a caveat in the Civil Code. "If the disproportion does not exceed one-twentieth of the total area stated, it is assumed that the reference was merely enunciative measures, the difference should be tolerated." Regarding the specific case, the rapporteur noted that the difference between the actual area of the apartment and contained in the documents submitted by the builder, 5%, was within the range considered tolerable by the legislation.
Devolution
"It turns out abuse by the offending Article 51, sections II and IV of the CDC, the contractual clause that determines, upon termination of the purchase and sale of property, the repayment of installments paid only at the end of the work" said Minister Luis Felipe Solomon, in the judgment of REsp 997,956.
APL Developments and Constructions appealed to the Supreme Court against the decision of the Court of Santa Catarina (TJSC), which is considered void the contractual clause which ordered the return of benefits paid by the buyer only after the completion of the works. Moreover, TJSC applied to the case of Article 1096 CC/16 whereby, "unless otherwise agreed, the arras cash are considered initial payment. Excluding this case, should be returned when the contract is concluded or be undone. "
According to Solomon, Special Rapporteur of the appeal, the Supreme Court has already established case-law on the subject, which is contrary to the claim of the contractor. At trial REsp 877 980, the Fourth Panel considered that the application of the clause sets unjust enrichment on the part of the developer, since it has the ability to resell the property to a third party and at the same time, take advantage and the amounts withheld.
As for the return of the price paid for signal, Solomon said that the buyer is entitled to obtain a refund, if it has not given rise to the termination of the contract.
