By Eduardo Cramer Ono
Law No. 13,786/2018, known as the “Withdrawal Law” (Lei dos Distratos), introduced significant amendments to Law No. 4,591/1964 (the Real Estate Development Law) and Law No. 6,766/1979 (the Urban Land Subdivision Law), with the aim of ensuring legal certainty for purchasers, especially in cases involving the termination of real estate purchase and sale agreements.
Among the main changes, the law limited the amounts that developers and land subdividers may retain in the event of contractual termination and established deadlines for the refund of amounts paid to the purchaser.
Despite having been in force for seven years, recent rulings by the Superior Court of Justice (STJ) have reignited doubts regarding its application.
In cases involving land subdivisions and consumer relations (REsp 2,106,548/SP, REsp 2,117,412/SP, REsp 2,107,422/SP, and REsp 2,111,681/SP), the Third Panel of the Court held that the retention by the land subdivider must be limited to 25% of the amounts paid, prohibited the charging of a use or occupancy fee (taxa de fruição) for undeveloped lots, and determined that the refund must be made immediately. To support this conclusion, the Court stated that the Consumer Defense Code (CDC) prevails over the Withdrawal Law, as it is more specific, and that practices such as retaining the full amount paid and refunding amounts in installments or only after completion of the project would be abusive.
At first glance, this understanding should not be fully applied to real estate developments (incorporações imobiliárias), which are, in fact, subject to their own specific rules.
This is because, by limiting retention to 25% of the amount paid by the purchaser, the Third Panel sought to prevent the retention of the entire amount paid, which would allegedly violate Article 53 of the CDC. However, in real estate developments, retention is already limited to a percentage of the amount paid, and therefore there is no violation of the aforementioned legal provision. Moreover, in the context of real estate developments—where the delivery of a future asset is promised—it is difficult (if not impossible) to consider the purchaser’s use or enjoyment of an undeveloped property.
On the other hand, if the thesis that the CDC should prevail over the Withdrawal Law is upheld, developers may be required to refund amounts immediately, which could directly affect cash flow and the pricing of projects.
The situation becomes even more complex because the Fourth Panel of the STJ adopts the opposite position, recognizing the Withdrawal Law as a special statute enacted after the CDC, and because the Third Panel’s understanding appears to be contradictory to Theme No. 1,095, which establishes the prevalence of Law No. 9,514/1997—governing fiduciary transfer of real estate—over consumer protection legislation. This divergence creates legal uncertainty and reinforces the need to closely monitor new rulings until the STJ harmonizes its position. For companies in the sector, now is the time to review contracts and strategies to mitigate risks and prepare for possible changes.
