Legal problems when buying an off-plan property: what to do when the promise doesn't become reality?

At the sales stand, everything was a promise: a gourmet balcony, “resort-style” amenities, delivery in 30 months. At handover, the amenities became “phase 2”, a fee nobody had explained appeared, and the living-room floor creaked. Off-plan buyers then discover that the legal problems of this type of purchase have a scheduled time to show up: after signing. The good news: almost all of them have a remedy in the law — as long as you act within the deadline.

While our article on mistakes when buying off-plan covers prevention before you sign, this one is the map of the after: what to do when the problem has already knocked on your door. We will cover unfulfilled advertising, improper charges, defects at delivery, condominium fees before the keys, and floor-area discrepancies.

The developer promised it in the brochure and didn't deliver: now what?

The advertised offer binds the supplier: everything that appeared in the brochure, the scale model, the sales stand and the ads becomes part of the contract (art. 30 of the CDC). If the barbecue area from the brochure vanished from the building specifications, the buyer can demand specific performance, accept an equivalent, or terminate the contract with damages (art. 35 of the CDC). Keep the sales material — screenshots, brochures, broker proposals sent over messaging apps. In court, that file is worth more than any appeal to goodwill.

Which off-plan charges are improper?

Two deserve close scrutiny: the SATI fee (a “technical real estate advisory” charge), found abusive by the STJ — Brazil's Superior Court of Justice — when charged to the buyer (Repetitive Theme 938), and the brokerage commission, which can only be validly passed on to the buyer if clearly provided for, with the amount disclosed in advance (same Theme 938). Charges with no legal basis can be refunded — and, where there is bad faith, doubled (art. 42, sole paragraph, of the CDC). Add it up: on an R$ 500 thousand property, SATI and brokerage can exceed R$ 25 thousand.

The property came with defects: what are the deadlines to complain?

At the delivery inspection, note everything in the report — cracks, window frames, leaks — and make acceptance conditional on the repairs. For apparent defects in durable goods, the CDC's complaint deadline is 90 days (art. 26, II); for hidden defects, the clock starts at discovery. Defects affecting the building's structural soundness and safety carry a statutory 5-year warranty (art. 618 of the Brazilian Civil Code), and the STJ recognizes a 10-year limitation period to claim compensation for the related damage. Notify the developer in writing — a filed record is evidence; a phone call is not.

Can condominium fees be charged before the keys are handed over?

As a rule, no. The STJ has settled that the condominium obligation arises with actual possession of the unit — the handover of the keys — and not with the occupancy permit (habite-se) or the condominium's installation meeting. Charges from before the unit was made available to the buyer can be challenged and refunded. The same reasoning applies to property tax (IPTU) passed on before possession, depending on how the contract is structured.

A concrete example: the Duarte family's apartment

The Duartes received — four months late, a delay already compensated — an apartment with a leak in the master suite and without the playground advertised in all the launch material. The strategy ran on three fronts: an inspection report with reservations and a deadline for repairs; an extrajudicial notice demanding the leisure facility based on art. 30 of the CDC, supported by the brochures; and a claim for refund of the R$ 9,800 SATI fee (STJ Theme 938). The result, by settlement: repairs within 60 days, a proportional price reduction for the missing amenities, and a full refund of the fee. Without the evidence kept since the sales stand, each front would have turned into “one word against another”.

The most common (and costly) mistakes

1. Throwing away the sales material. Risk: losing the evidence that binds the developer to the promise (art. 30, CDC).
2. Signing a “clean” delivery report just to get the keys sooner. Risk: making it harder to claim apparent defects that were not noted.
3. Letting the CDC's 90-day deadline run out while complaining by phone. Risk: losing the right for lack of a written, filed complaint.
4. Paying every charge “so the handover isn't held up”. Risk: funding abuses the law would order refunded — sometimes doubled.

Actionable checklist for the off-plan buyer (post-signing phase)

• Keep brochures, ads, proposals and conversations with the broker from the very first contact;
• Check every extra charge in the contract (SATI, brokerage, fees) and its legal basis;
• At the inspection, record defects with photos and reservations in the report — bring technical support if possible;
• Notify the developer in writing, with a deadline, for each outstanding issue;
• Note the deadlines: 90 days (apparent defects, CDC), the five-year structural warranty (art. 618, Civil Code).

Frequently asked questions

Is what the developer advertised in the brochure binding?

Yes. Under art. 30 of the Brazilian Consumer Protection Code, the offer and the advertising become part of the contract and bind the developer. If the advertised item is not delivered, the buyer can demand specific performance, accept an equivalent, or terminate the contract with damages (art. 35 of the CDC). Keeping brochures and ads means keeping evidence.

Is the SATI fee legal? Can I ask for a refund?

The STJ, in Repetitive Theme 938, found the SATI fee abusive when charged to the buyer. Amounts paid can be refunded — adjusted for inflation and, where there is bad faith, doubled (art. 42, sole paragraph, of the CDC). The brokerage commission, on the other hand, may be passed on to the buyer, but only if clearly provided for and the amount disclosed in advance.

What is the deadline to complain about defects in a new property?

Apparent defects in durable goods: 90 days from delivery (art. 26, II, of the CDC); hidden defects: 90 days counted from discovery. Defects affecting structural soundness and safety carry a 5-year warranty (art. 618 of the Brazilian Civil Code), and STJ case law admits a 10-year period to claim compensation for the damage. Always complain in writing, with a filed record.

Can I be charged condominium fees before receiving the keys?

As a rule, no. Settled STJ case law holds that the obligation to pay condominium fees arises with actual possession of the unit — that is, with the handover of the keys or the property being made available to the buyer — not with the occupancy permit. Earlier charges can be challenged and refunded.

When should I see a lawyer about problems with a developer in São Paulo?

As soon as the problem appears — before signing releases or accepting over-the-counter settlements. The CDC's deadlines are short (90 days for apparent defects) and the strategy changes depending on the available evidence. Well-documented out-of-court work resolves a good share of cases without a lawsuit before the São Paulo State Court (TJSP) — and lays the groundwork if one becomes unavoidable.

A broken promise has a remedy — for those who act in time, with evidence

Binding advertising, refunds of abusive charges, the structural warranty, condominium fees only after the keys: the law protects the off-plan buyer from end to end. What it does not protect is inaction — 90-day deadlines pass quickly, and evidence that wasn't kept doesn't come back.

At Falchet e Marques Sociedade de Advogados, a law firm in São Paulo (Av. Paulista), we handle post-purchase off-plan disputes — unfulfilled advertising, improper charges, construction defects and delays — with out-of-court and court strategies before the TJSP.

Talk to our team on WhatsApp: +55 11 95901-1854 — describe the problem with your unit and send us the contract: we will map out the remedies and deadlines for your case.