Consumer News

Purchase of property under construction.

by Danilo Santana - Brazilian Writer

Reflections of the legal code of the consumer and the law of incorporation in the purchase and sale of buildings under construction.
 
The incorporation by the "price closed," in our legislation is very complex, since it keeps the burden of incorporating the system "by administration" (also called the "cost price"), together with the respective business.
 
Current Contracts Promise of Purchase and Sale of the market are well prepared and have all the terms necessary and useful to the defense of Construction and incorporated, however, it should pass some considerations on the legal consequences of certain clauses of contracts, from the viewpoint the consumer, but let's see:
 
 
Documents to be included in the contract.
 
A copy of the Convention of condominium (or the draft registered) piece is to be initialed by the purchaser of the unit and make the list of documents from the Promise of Purchase and Sale, it is true that there is a legal presumption that the consumer to know for be part of the documents presented in the office building where the registration of the merger.
 
Already the design and specification are required under para. 1. Article 48 of Law 4591/64, which states:
 
"The design and specification of buildings will be an integral part of the contract and complementary."
 
 
Visitation of the works - Committee of Representatives
 
While this is by embedding "price closed" must be seen to Article 19, also of Law 4591/64, and the ineffective clauses aimed at changing the law.
 
We can not fail to call the owners of the General Assembly for election of the Committee of Representatives, even when it is incorporated into the scheme is to work or "price closed."
 
Although it seems innocuous and without purpose the election of a Committee of Representatives of owners when the work has the right price, adjustments and advance specification, it is true that the law established that 4591/64 is a function of the Commission of Representatives to follow the work, the integral obedience to the plant and the specification.
 
Article 55 says stop. 3. Law 4591/64:
 
"In contracts for construction work by the Commission of Representatives monitor the progress of work and obedience to the design and specifications, performing all other obligations to its representative function of the contractors, the inspection of construction."
 
It is important that the record owners of a building have access to the full name and address to the other owners, and of interest, calling them to a general assembly to elect the members of the Committee of Representatives.
 
 
The contractual fine
 
It must be very attentive to the legal implications that emanate from the Consumer Defense Code, because the same type situations are not always clearly defined.
   Art 1 This Code sets standards of protection and consumer protection, public order and social interest, pursuant to arts. 5, item XXXII, 170, section V of the Federal Constitution and Art. 48 of its provisions.
 
Important to note that the code consumer has a connotation that the formal difference from other ordinary laws, born of a constitutional guarantee. (art. 5. XXXII of the Federal Constitution). This will be repealed by another questionable statutory law, since this will be offensive to CF. Naturally, the term withdrawal is different from change.
 
As the Consumer Defense Code a rule of public order and social interest, become negotiable by the parties, any of its terms where not expressly provided for this hypothesis in some of its articles.
 
Means to say that the institute legal interest outweighs the individual and therefore the rights granted by the CDC are not available or negotiable.
 
Example: Not a valid waiver of any rights that the law provides and more, any contractual clauses that could rise to fraud of any article, are missing:
 
So, if agreed a fine for delay beyond the percentage allowed it becomes zero and there will be no fine.
 
For the study under contract to a fine for late payment is within the legal reality, but the default is fine for all conditions to be considered unfair, because the resulting penalties are more, but with the same origin.
 
Another aspect that must be observed is the possibility of a merger the price closed "available on time for the return of the amount paid on a split in the event of termination of contract or breach of the Consumer.
 
There must be a balance between the relations of consumption. If no other penalty for the buyer is entirely possible that clause, provided it is within a short period (not more than the usual period of sale of a similar product, at market price).
 
What is correct is incorporated to establish this penalty among others, for example the recovery of stranded costs. The case is peaceful, the entrepreneur can pass to customers the cost of the venture, but can not pass the risk of the business.
 
Contractual or legal interest
 
It is really dangerous clause requiring the interest of product not delivered, such as unit building under construction.
 
The interest, in any case keep with the compensation on capital (compensation) or the capital to be received and it was not, (moratorium).
 
Not matter if the interest in these figures are contractual or legal interest, which it is known that the effect requires a measure of investment to the lender on this investment can be implemented.
 
The design is not the possibility of someone charging interest on an amount not invested, not spent, not spent. Moreover, the value of property not constructed, not delivered.
 
If the property in building the collection of interest on the amount of business has all the characteristics of a ruse, a means of masking the reality of the price, inducing the buyer to imagine a price when, in fact, to receive the property, this would be around 30% to 50% more expensive.
 
But the most important is to note that the manufacturer does not invest the entire amount in that work and, though he had done would be paid without question.
 
The situation is crystal clear in this approach and demonstrates there is unjust enrichment.
 
At best, it will undoubtedly have it included in the promise of buying and selling the clause of interest only to change the price of the property, so subtle and not noticeable by the buyer, as there is no capital to pay.
 
The Consumer Code provides:
 
ARE BASIC RIGHTS OF CONSUMER
 
Article 6.
 
III - the appropriate and clear information about different products and services, with correct specification of the quantity, characteristics, composition and price,
 
IV - the protection against misleading advertising and unfair, coercive or unfair business methods and abuse or imposed on the supply of goods or services;
 
V - the change in contractual terms which establish disproportionate benefits or the review because of supervening events that make it too expensive;
 
 
Prescription contract or amendment of the law.
 
The security of the building and property that the trim will be always within the limits of the law and prevail against the incorporation, regardless of contractual provisions that exempt from liability or send the consumer directly from the supplier or manufacturer of the product.
 
Also the prescription or decline the right to claim for defects in relation to consumption that is required by law and is not a contractual provision. In the case of many contracts in the market contain clauses that subvert the dominant legal interpretation and demonstrate some abuse, because it is the contract of membership.
 
The Consumer Defense Code defines unfair terms.
 
OF UNFAIR TERMS
 
Article 51
Are void of right, including the contractual terms for the supply of products and services that:
 
III - Transfer responsibility to others;
 
IV - establish obligations considered unfair, abusive, placing the consumer at a disadvantage exaggerated, or are inconsistent with good faith and fairness:
 
First paragraph:
Presumed to be exaggerated, among other cases, the advantage that:
 
I - offends the fundamental principles of the legal system to which it belongs;
 
II - restrict fundamental rights and obligations inherent in the nature of the contract, so as to threaten its subject or the balance contracts;
 
III - it seems too expensive for the consumer, considering the nature and content of the contract, the interest of parties and other circumstances peculiar to the case.
 
 
Article 3 of the Consumer Defense Code explicitly defines the supplier:
 
Art Vendor is all the 3rd person or entity, public or private, domestic or foreign, and loved disidentified, developing activities of production, assembly, creation, construction, processing, import, export, distribution or marketing of products or services services.
 
Article 12 The manufacturer, producer, manufacturer, domestic or foreign, and the importer liable, regardless of fault, repairing the damage caused to consumers by defects arising from design, manufacturing, construction, assembly, formulas, manipulation, presentation or packaging of their products, as well as insufficient or inadequate information about its use and risks.
  
In this article it is the responsibility of compensation by the manufacturer that the damage and cause, regardless of fault.
 
Example: A power plant caught fire and burned all belongings of the consumer, the manufacturer has no fault, the fault lies with the manufacturer of wires, or the company that ran the electric project and not scaled correctly the distribution of energy, no matter the manufacturer and indemnify the consumer responds, then trying, through civil rights legislation in the insert, you can pick the right of return.
 
Article 12 - § 1 The product is defective when it does not provide the security that it legitimately expected, taking into account relevant circumstances, including:
I - submission;
II - the use and risks that it reasonably be expected;
III - at the time it was put into circulation;
§ 2 The product is not considered defective because of another of better quality have been put on the market.
§ 3 The manufacturer, the manufacturer, producer or importer will not be held liable only if he proves:
I - not put the product on the market;
II - which, although placed in the product market, the defect does not exist;
III - the exclusive fault of the consumer or third party.
It should be noted that the law does not need considering the consumer's responsibility to prove that the damages would be the builder. That is, there is a legal presumption of fault of the manufacturer. Just as the consumer proves the harmful event and the purchase of goods or product.
If the case is that the manufacturer has the responsibility to prove that the fault for the event was harmful to consumers.
 
Finally, it is important to note that consumers in many of the situations discussed, may obtain review of their contracts, or even get the figures to their damage, by consumer protection authorities, prosecutors or Special Courts. And that no court costs or attorneys fees.
 
Fine or indemnity to the purchaser for the delivery of the property after the deadline.
The purchaser of property under construction is entitled to receive a fine or compensation when given a specific time for delivery of the property and the builder does not deliver as promised.
When it comes to fine the contract value is expected and no major discussion on the definition of injury to consumers, however, when there is no clause to that effect, the judge will decide the amount that means fair pay for the manufacturer to the consumer. In these cases the courts have understood that the just compensation due the purchaser shall be calculated considering the market value of leases of similar property multiplied by the number of months of delay in delivery.
An important detail is that some manufacturers do not include in the contract which would be the date of delivery of certain property, however, advertising, set a date absolutely unreal.
This has been a serious mistake by the manufacturers. Because the law states that advertising is seen as part of the contract, therefore, worth ouvesse as a clause to that effect. Thus, in many situations, consumers are getting really high values of contrutores as compensation for delay in delivery of work.
Therefore, it is important to note that the consumer also save the brochures and advertisements of the property acquired, in addition, of course, the other documents in practice.
 
Comments and Opinions
1) Mara Rejane (17/7/2008 at 13:55:14)
Can enforcement (fines) of the counter proessa and sale, construction not surrendered the property within

2) Carlos Chaves (8/2/2009 at 21:16:40)
When buying a property, many entrepreneurs require the buyer to pay the consumer SATI / SAT - Advice Imobiliária.Você is not obliged to pay such advice. But there are cases where it does not sign the contract with SATI / SAT, prevent you from buying the desired property. Save everything you can as evidence.
If you signed the contract with SATI / SAT and wants back the amount paid, please contact us so we can better guide you.
berodriguess@yahoo.com.br
Carlos

3) Reginaldo (3/3/2009 at 21:22:30)
I have a property and sold it ... I signed a purchase and sale comtrato where I quit I have to pay a fine ... this document is valid? Can cancel the sale?

4) Lilian (9/3/2009 at 19:34:22)
what civil cod has about the return of sums paid in the event of contract termination for default?

5) Lidiane (11/3/2009 at 09:31:43)
Buy 1 ROOM IN THE FORM OF Cooperat Ten years ago, but so far fails to deliver the work.
I HAVE 41% OF THE PROPERTY AND PAID NOW find that the owners of the land is TAKEN UP THE WORK.
WHAT ARE MY RIGHTS IN RELATION TO MY APARTMENT?

6) Wilson Viotia (23/3/2009 at 12:33:37)
Construtora Goldfarb bought the apartment in a condominium in High di Congratulates Jundiai. In the promise of sale the property was to be delivered until August/2008 and over 180 days of time that expired on 26/02/2009. The keys were delivered on 14.03.2009, therefore outside the contractual period. Question: Can I claim against the builder to return the property in breach of contract and receive what I paid.

7) Julio Rodrigues (2/4/2009 at 16:46:43)
I bought an apartment direct with the builder chaamram for me and they talk and told me that there will be delay of 2 months in the work and then I asked for an increase of 10 thousand reais within 2 months ... Is that legal? There something that you can avoid?

jcmr_gike@hotmail.com my email

Thanks ...

8) Flavio (25/4/2009 at 16:20:12)
In purchasing the plant in the house concomínio after the registration of single fraction of the property in office buildings, the responsibility for payment of IPTU is the buyer or the real? the buyer will only have the obligation to pay the IPTU after delivery of the keys?

9) Ronalda (1/5/2009 at 23:32:21)
I bought a fit with Encol about 15 years, more or less in the neighborhood of Lourdes, paid a year and a half, the company faliu.A association of condominiums do not have my name, not the drive that I bought as vendida.E I said it included, and I lost my rights in favor apto.Por I ajudem.Meu email ronaldasantos@hotmail.com

10) Bernadete (11/5/2009 at 12:13:05)
bought a fit with Goldfarb paid entries all with the promise to receive the keys after 3 months it was in August 2008 until today do not have the keys I would like to know if I can cancel the purchase and receive all the money I paid

11) Carlos Alvares (31/5/2009 at 04:11:54)
Dear,

This rate is not legal is abusive.

If you bought property and is satisfied with the progress of the negotiations or of the venture that cost him dear, this should not happen. There are laws which protect you and ensure their rights. Sure can and should be resolved.

You, like everyone, should have paid by SATI, CIVIL PROPERTY (0.88% of the value of the property for) it, as I noted, has been charged unlawfully.

Every buyer who felt obliged to sign the contract with SATI / SAT or ATI Consulting IMOBILIÁRIA, has the right to return the value you paid. Therefore has the right to return to the paid. It is clear that the property / business will say that the collection was carried out correctly. We noticed that the way is a collection of SATI is not correct.

If you want to the contract may be terminated and you take back much of that already paid. NO is only 10% or 20% as some entrepreneurs put in their contracts.

Contact us so we can guide you in the back of that was paid or what I would do.

Carlos Alvares
berodriguess@yahoo.com.br


12) Volpiano Sueli (1/6/2009 at 14:35:38)
I bought a property in beach, and one of the clauses of the contract says: "In case of default will be charged 1% interest per month and 10% of the fine paid."
The provision rises every month as savings index, index on index in the case, acumuladativamente. Is it correct?

Regards

My email: suelim@prefeitura.sp.gov.br

13) Josiel (22/6/2009 at 14:49:15)
Hi all right?
and my name and I josiel q vcs me ajudaseem with a debt I q! has already bought one after UMS 6 years now and so the documentation came out, so that the document is apartment building! I could pass it to my name anyway? not have problems or unexpected expenses if I sell it in the future? q me he would be constructed apartment? they are both evade any type of tax?
what are my rights? (need urgent response)
thanks.
josiellondon@hotmail.com

14) Marcio Adriano (2/7/2009 at 21:54:51)
I bought an apartment in the plant where the deadline was set for Fev/2009 and nothing so far. Not found anything on the contract period of delay and / or fine for delay. What is the maximum, by law, that can delay construction? How to calculate the fine that I am entitled as a result of this delay?
email: marcioadriano8@hotmail.com

This article was translated by an automatic translation system, and was therefore not reviewed by people.