Delay in handling over civil works and buyer's rights

A civil construction work's delay is one issue that most generates problems in real estate law.?

A purchaser must be attentive and well-informed on how to solve, in practice, the delay in the delivery of the work and not end up at a loss.

It is widespread for some construction companies not to be able to deliver the properties within the contractually stipulated period.

Thus, whenever the acquirer encounters this situation, it will be necessary to evaluate the specific conditions of the case and go into action.

First, be aware that the vast majority of commitments for the purchase and sale of real estate on the plan have a tolerance clause regarding the deadline for delivery of the property.

According to Brazilian Civil Corts' jurisprudence, it is 180 days, the period probably indicated in the contract for the delivery of the construction work. The builder will also have a tolerance period to deliver the keys.

At this point, the purchaser must pay particular attention to counting this period, which must always be done on calendar days, not on working days, as some construction companies insist on applying.

As a rule, the consumer rule (Lei n. 8.078/90) prevails in the commitment contracts for the purchase and sale of real estate, which imposes a ban on all matters that put the consumer at a clear disadvantage.

According to the Superior Court of Justice (STJ), the stipulation of the period in working days would reduce the clarity of the contractual rule since the purchaser would be required to make a tremendous effort to calculate the tolerance period's exact time of expiration, as well as if it would need them to be aware of national, county and municipal holidays, which would make it very difficult for them to exercise their consumerist rights.

Therefore, when signing a contract, the purchaser must pay attention to the clause stipulating the grace period for handing over the keys, particularly counting calendar days.

If, however, the contract establishes that the counting of this grace period must occur on business days, be aware that this clause is null and void, and the counting must be done in calendar days, even if the contract says otherwise.

Well, that's it.

Overcoming these initial considerations, let's see what the purchaser can do if he finds a delay in the delivery of the construction work.

The first recommendation is for the acquirer to send an Extrajudicial Notification claiming all the rights it deems appropriate through the notary.

In this notification, the buyer may initially request clarification regarding the delay and the charge for the adequate progress of the works, which directly reflects on the outstanding balance.

The buyer cannot be required to pay for the time the civil construction was delayed, especially when the delay is solely attributable to the construction company's business.

Another right that can and must be claimed in the Out-of-Court Notice refers to the possible return of the rent that the buyer paid or is paying after the tolerance period's end and until the date of effective delivery of the keys.

It is common for the owner of the property under construction to live through a rental contract in another property owned by a third party while waiting for the delivery of their acquired property so that he or she can finally occupy his definitive address.

Therefore, as the purchaser will be obliged to pay the rent for the exceeding period to the third party, the construction company will have to reimburse him or her the amount paid until the keys to the definitive property are handed over.

Also, if this is not the case, the acquirer, especially the one who bought the property to invest, has the right to ask for lost profits. That is, he can claim what he has not earned with his property due to the company's delivery delay.

In addition, it is worth mentioning that the construction company may still have to bear material and moral damage if, for example, the buyer has to terminate the contract with a bespoke furniture company or suffers substantial damages due to the delay in delivery of the civil construction work.

Not least important, add to this the fact that, in case of delay in the delivery of the work, the purchaser will still have the right, if he so wishes, to request the contractual termination and the refund of all amounts paid duly corrected.

Here, even is worth an alert.

Many companies insist on not returning the total amount in case of delay in the delivery of the work, through undue discounts, and the worst, when they do, they want to make the return in instalments.

However, the buyer must be aware of this return of the deposited money. In addition to being complete, it must be monetarily adjusted and returned in a single instalment because, as we said, the consumerist standard will apply here.

Finally, it is worth mentioning that the obligation to pay the condominium fee, which will be charged by the condominium that will be formed, cannot be imputed to the purchaser until the actual receipt of the keys.

Thus, if any amount had been charged, the buyer will have the right to request the refund of the amounts paid until then and may also, in the notification, request the refund of what he paid, as well as the suspension of the collection of any charge in this regard.

From the outset, all these rights should be mentioned in the Extrajudicial Notification sent to the construction company because then the acquirer will formally demonstrate their intentions and, most importantly, will constitute evidence for a possible lawsuit.

We know that it will only sometimes be possible to finalize any problems related to the delay in the delivery of the property in a friendly manner. Everything will depend on the internal policy of the company.

However, the purchaser knows that if an agreement is not possible in the out-of-court sphere, he will have no alternative but to bring a lawsuit to plead all the rights he considers appropriate to his case, such as those listed here.