With the publication of Federal Law No. 13,786/18 (the Termination Law), the legislator sought to end the discussion regarding the fair and reasonable percentage that could be retained by real estate developers in the event that purchase and sale agreements are undone at the mere will of the purchaser or by default on the payment of the purchase price.
The law clearly defined the maximum retention limit at 25% (or 50%, for cases where there is segregated equity) of the amount paid by the purchaser, plus the brokerage commission. It did not indicate, however, what arrangement would apply to contracts executed before the law entered into force, which often provided for higher percentages (reaching 70% in some cases).
Faced with this doubt, the Public Prosecutor's Office of the State of São Paulo filed with the São Paulo Court of Appeals, in 2017, a collective consumer action regarding the unfairness of provisions that stipulate withholdings between 50% and 70% of the amount paid by consumers. The action was submitted to the Third Panel of the Superior Court of Appeals (STJ) and decided under Special Appeal 1820330/SP, for which Justice Nancy Andrighi drafted the opinion.
Contrary to the provisions regarding the application of the Termination Law as a legal reference and in an analogical manner (considering that it had been published after the execution of the contracts at issue, but that it dealt fully with the subject), the Justice established that "the percentage of 25% unequivocally encompasses all indemnities that must be guaranteed to the seller in the event of breach of contract with the consumer at fault." In other words, in addition to reducing the contractual percentages in the specific case (which is in accordance with the criterion of the most current legislation), the STJ included, in this same limit, a brokerage commission, on the understanding that this is a cost within the liability of the seller of the unit (even if contractually the obligation to pay the commission is transferred to the purchaser, as understood by Topic 938/STJ).
The issue is delicate and the STJ’s solution is debatable. Even considering that it was already common to reduce the percentage of retention in cases of proven contractual abuse and that the adoption of the criterion of the most recent law may be a way out in certain cases, the STJ, by including the brokerage commission in this amount, ended up adopting a solution more onerous for the developers than the legislation itself, considering that the Termination Law allows retention of the brokerage commission in addition to the percentage of 25%.
Although the decision may serve as a parameter for future judgments in the STJ itself or in the state courts, it has not settled the issue and does not necessarily apply to all other cases that discuss the issue. In other words, it is not yet possible to define the course of the case law on the subject nor to define the applicability, by analogy, of the parameters brought in by the Termination Law to the contracts executed before its entrance into force.