Real estate litigation · SPD Advocacia
Builder sued over late delivery? The STJ has set limits on the damages
The law and the repetitive appeal rulings of the STJ (Brazil's Superior Court of Justice) define what the buyer can claim when construction runs late. The defense starts by checking the agreed grace period, the contractual penalty, the period of delay and the date on which possession was made available.
What the law says
The 180-day grace period and the buyer's two options
Art. 43-A of Law 4,591/1964, added by Law 13,786/2018, allows delivery up to 180 calendar days after the agreed date, without termination of the contract and without a penalty, provided that the grace period is stated expressly, clearly and prominently in the contract.
Once that period has passed without fault on the part of the buyer, the buyer may seek termination, with a refund of everything paid plus the contractual penalty, within 60 days (§ 1º), or keep the contract and receive damages of 1% per month on the amount actually paid to the developer, pro rata die (§ 2º). The two penalties cannot be combined (§ 3º).
What the STJ says
Penalty, lost profits and construction-period interest
Tema 970. The penalty clause for delay (cláusula penal moratória) serves to compensate for the delay and, when set at an amount equivalent to rent, rules out combining it with lost profits (REsp 1.498.484/DF).
Tema 971. If the standard-form contract provides a penalty only for the buyer, that penalty serves as the benchmark for the damages owed by the seller, converted into a sum of money through judicial assessment (arbitramento) (REsp 1.614.721/DF).
Tema 996. The delivery date cannot be tied to the approval of financing. The buyer's loss is presumed and corresponds to the rent of a similar property, until direct possession is made available. Charging construction-period interest (juros de obra) after the agreed deadline, including the grace period, is unlawful (REsp 1.729.593/SP).
The STJ's 3rd Panel (3ª Turma) allows lost profits when the contractual penalty is lower than the rent (REsp 2.025.166). For this reason, the wording of the penalty clause carries weight in the defense.
Moral damages
Delay does not automatically give rise to moral damages
According to the STJ, a mere breach of contract does not, by itself, give rise to moral damages (dano moral). The exception is a delay over a long period, which may justify compensation depending on the circumstances (AgInt no AREsp 3.107.617/RJ, 4th Panel, published in the DJEN, the national electronic court gazette, on June 19, 2026).
Requirements
What the defense examines
Delivery date, grace period and penalties shown prominently.
Contractual deadline, habite-se (occupancy permit) and availability of the keys.
Amount of the penalty clause compared with the rent.
External events documented during construction.
Outstanding payments or documents.
Construction-period interest, adjustment index and other charges.
Source: Law 4,591/1964, art. 43-A (Law 13,786/2018); STJ, Temas 970, 971 and 996; REsp 2.025.166; AgInt no AREsp 3.107.617/RJ.
What is your case?
Situations the firm handles
Claim for rent and penalty at the same time
Challenge to the combination under Tema 970.
STJ, Tema 970Delay within the 180 days
Review of the agreed grace period clause.
Law 4,591, art. 43-AClaim for moral damages due to the delay
No presumed damage from a mere breach.
STJ, AgInt no AREsp 3.107.617Buyer wants to undo the contract
Refund and penalty within the limits of § 1º.
Law 4,591, art. 43-A, § 1ºKeys available but not collected
Damages end when possession is made available.
STJ, Tema 996Portfolio with many similar lawsuits
Standardized arguments and settlements based on set criteria.
Litigation managementStep by step
How the firm works
- Assessment. We read the contract, summary table, complaint and construction documents.
- Calculation. We check periods, amounts paid and what the law and the STJ allow the buyer to claim.
- Defense. Statement of defense, hearings and appeals, with the arguments that apply to the case.
- Portfolio. For developers with many lawsuits, we standardize arguments, reports and settlement criteria.
Case review
Let us review your company defense
Answer the questions, one at a time. At the end you can attach documents, which go straight to a folder in the firm's Drive, and send the summary via WhatsApp. Everything is protected by attorney-client confidentiality.
Common questions
Frequently asked questions
Is the 180-day grace period clause valid?
The law allows a grace period of up to 180 calendar days when it is agreed expressly, clearly and prominently in the contract.
Can the buyer receive the penalty and rent at the same time?
Under Tema 970, a delay penalty equivalent to rent rules out combining it with lost profits. When the penalty is lower than the rent, the 3rd Panel allows lost profits to be claimed.
Until when do damages accrue?
Under Tema 996, the presumed rent is owed until direct possession is made available to the buyer.
Does a delay always give rise to moral damages?
The STJ holds that a mere breach does not give rise to moral damages by itself, except for delays over a long period.
Do you serve companies from other states?
Yes. We work throughout Brazil, with electronic court filings and online meetings.
How does engagement work?
After the analysis, the firm sends a written fee proposal. For portfolios with many lawsuits, there is a monthly retainer.
Lawyer for builder defense in construction delay cases
SPD Advocacia represents builders and developers from all over Brazil in lawsuits over late delivery of properties, with a defense based on Law 13,786/2018 and the STJ repetitive appeal rulings.
Grace period and penalty
The law allows a grace period of up to 180 days and sets out the consequences of delay beyond that period.
STJ repetitive appeal rulings
Temas 970, 971 and 996 deal with combining penalties and lost profits, reversing the penalty clause and construction-period interest.
Informational content, in accordance with OAB (Brazilian Bar) Provision 205/2021. Each case depends on a review of the documents, and no result is promised.