Contract termination · SPD Advocacia
Did the buyer back out of the purchase? The law defines what the developer may retain
Law 13,786/2018 set retention percentages, charges and refund deadlines for undoing the contract, whether by mutual termination (distrato) or because of the buyer's default. The defense checks whether the contract followed these rules and claims what the law allows.
Law 13,786/2018
What may be deducted
Art. 67-A of Law 4,591/1964 allows the full brokerage commission and the contractual penalty, which cannot exceed 25% of the amount paid, to be deducted from the amount to be refunded.
The buyer is also liable, in proportion to the time the unit was available to them, for property taxes, condominium and association fees, a use fee (fruição) set at 0.5% of the adjusted contract value and calculated pro rata die, and the other charges provided for (§ 2º). These debts may be offset against the amount to be refunded (§ 3º).
In developments under a segregated asset regime (patrimônio de afetação), the penalty may reach 50% of the amount paid, and the refund is due within 30 days after the habite-se, the occupancy permit (§ 5º). Without a segregated asset regime, the balance is paid in a single installment 180 days after the termination (§ 6º). If the unit is resold before then, payment is due within 30 days of the resale (§ 7º).
Summary table
The condition for applying these rules
Art. 35-A requires the contract to begin with a summary table containing the essential information, including the price, the brokerage fee and the consequences of termination. The termination clauses require the buyer's specific consent, with a signature next to them (§ 2º). A contract without a complete summary table weakens the retention.
STJ
Older contracts and pending Temas
Súmula 543 of the STJ (Brazil's Superior Court of Justice) requires the immediate refund of the installments paid, in full when the seller is solely at fault and in part when the buyer caused the termination. For contracts signed after Law 13,786/2018, the defense argues for applying the deadlines of art. 67-A.
For contracts signed before the law, when the buyer seeks termination on terms different from the penalty clause, default interest runs from the date the decision becomes final and unappealable (Tema 1002, REsp 1.740.911/DF).
The STJ selected Temas 1.464 and 1.465 for a repetitive appeal ruling to set the retention percentage and its calculation base in lot or land contracts signed after the law and in contracts signed before it, and suspended the special appeals on the subject. In October 2026, both Temas were still pending judgment.
Requirements
What the defense examines
Information required by art. 35-A and signature on the termination clauses.
Before or after Law 13,786/2018.
Registration of the regime, which allows retention of up to 50%.
Installments, brokerage fee and charges for the period.
Time during which the buyer had the unit available.
Whether the unit has already been resold.
Source: Law 4,591/1964, arts. 35-A and 67-A (Law 13,786/2018); STJ, Súmula 543 and Tema 1002; Temas 1.464 and 1.465 pending.
What is your case?
Situations the firm handles
Buyer asks for a full refund
Application of the deductions in art. 67-A.
Law 4,591, art. 67-ADevelopment under a segregated asset regime
Retention of up to 50% and refund after the habite-se.
Art. 67-A, § 5ºBuyer stopped paying
Termination and recovery of the charges for the period.
Art. 67-A, § 2ºContract signed before Law 13,786/2018
Default interest from the date the decision becomes final.
STJ, Tema 1002Subdivision lot or land
Rules of Law 6,766/1979, also amended in 2018, and Tema 1.464.
STJ, Tema 1.464Many terminations under dispute
Standardized retention and settlement criteria.
Litigation managementStep by step
How the firm works
- Assessment. We review the contract, summary table, registration of the development and of the segregated asset regime, and the payment history.
- Calculation. We work out the retention, brokerage fee, use fee and charges for the period.
- Negotiation or defense. Out-of-court termination with a release agreement, or defense in the lawsuit.
- Portfolio. Reports and uniform criteria for developers with many cases.
Case review
Let us review the termination
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
How much may the developer retain?
The contractual penalty may reach 25% of the amount paid, in addition to the brokerage fee. With a segregated asset regime, the penalty may reach 50%.
When must the refund be made?
With a segregated asset regime, within 30 days after the habite-se. Without it, in a single installment 180 days after the termination. If the unit is resold, within 30 days of the resale.
Does a buyer who used the property pay a use fee?
Yes. The law provides for a use fee of 0.5% of the adjusted contract value, calculated pro rata die and in proportion to the time the unit was available, plus taxes and condominium fees for the period.
What about contracts signed before the law?
They follow the earlier case law. The retention percentage in these contracts is under discussion in Tema 1.465 of the STJ.
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 developers in property contract terminations
SPD Advocacia represents developers and builders from all over Brazil in mutual terminations and in lawsuits to terminate off-plan property contracts.
Retention under Law 13,786/2018
Up to 25% of the amount paid, or up to 50% with a segregated asset regime, plus the brokerage fee and the charges for the period.
Temas pending at the STJ
Temas 1.464 and 1.465 will define the retention in contracts signed before the law and in lot contracts.
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.