Off-Plan Property, Rescission & Delay (Brazil)

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Brazil Off-Plan Property Termination Under Lei 13.786/2018

Off-Plan Property Termination in Brazil: How the Lei 13.786/2018 Retention Works

When a buyer backs out of an off-plan property purchase, or when the developer delivers the unit later than the grace period allows, Lei 13.786/2018 sets caps that no contract clause can exceed: a ceiling on how much of the amount paid the developer may retain, and a formula for delay damages. This calculator applies those caps in both scenarios, contract termination and construction delay; this guide explains the mechanism behind each calculation.

Two scenarios, two different legal caps

In a contract termination, Article 67-A of Lei 4.591/1964, added by Lei 13.786/2018, caps the developer's retention at 25% of the amount the buyer paid, rising to 50% when the project is placed under the segregated-assets regime (patrimônio de afetação) of Lei 10.931/2004, under §5 of the same article. The calculator corrects the total paid by the contractual index before applying the entered retention percentage, and it caps that percentage at the legal ceiling whenever the entered value exceeds 25% or 50%, depending on the case; brokerage commission already paid is deducted in full and cumulatively with the retention, under Article 67-A, §1, I, meaning it adds to the deduction instead of being absorbed by the same percentage.
The deadline for the developer to return the balance also changes depending on the project's regime: under the segregated-assets regime, the refund is due within 30 days of the occupancy permit (habite-se) being issued, under Article 67-A, §5; outside that regime, the refund is a single payment due within 180 calendar days counted from the termination date, under §6 of the same article. When the buyer had already occupied the unit before the termination, the calculator also deducts occupancy compensation, calculated at 0.5% per month of the contract value for each month of actual use, a percentage courts frequently apply for this compensation.
The real trap in construction delay sits in the grace period. STJ Tema 996, decided in REsp 1.729.593/SP, validates the contractual grace-period clause of up to 180 calendar days for delivery, counted from the date the contract set; only delay beyond those 180 days generates lost-rent-style damages, calculated using the same 0.5% per month of the property value referenced for occupancy compensation in a termination. On top of that, Lei 13.786/2018 does not apply retroactively: it only governs contracts signed on or after December 28, 2018, so a contract signed before that date is not subject to this law's retention caps or its grace-period criterion.

Termination and delay, two calculations side by side

Termination with a contractual retention above the legal cap

Input: Total pago de R$ 60.000,00, retenção contratual de 30%, corretagem de R$ 5.000,00, sem patrimônio de afetação, valor corrigido pelo índice contratual até R$ 61.906,62
Expected output: Retenção travada em 25% (R$ 15.476,66), corretagem deduzida à parte (R$ 5.000,00); valor a devolver R$ 41.429,96

Even though the contract set a 30% retention, the calculator applies the 25% legal cap from Article 67-A, §1, II, because no clause can exceed that limit outside the segregated-assets regime; brokerage adds to the retention instead of being absorbed by it.

Construction delay beyond the 180-day grace period

Input: Entrega prevista para 01/06/2025, entrega real hipotética em 01/08/2026, tolerância contratual de 180 dias, valor do contrato R$ 300.000,00
Expected output: Atraso de 8 meses além da tolerância; lucros cessantes de R$ 1.500,00 por mês, total de R$ 12.000,00

The count only starts after the 180 days of grace validated by STJ Tema 996 are deducted; the 0.5% per month applies to the contract value, not the amount already paid, and represents a reference courts use for lost-rent damages, not a guarantee of compensation in that exact proportion.

Delay still within the grace period

Input: Entrega prevista para 01/06/2025, entrega real hipotética em 01/10/2025, tolerância de 180 dias
Expected output: Atraso de 0 meses após o desconto da tolerância; nenhum lucro cessante calculado

A delay of a few months, still within the grace-period clause validated by the STJ, does not create a right to lost-rent damages; the calculator only starts counting delay months after the 180 calendar days of grace have already been used up.

Full tool FAQ

What is the tolerance period for property delivery?

Law 13.786/2018 allows a tolerance period of up to 180 calendar days beyond the contractual date, if set out in a clear, express clause (STJ Tema 996). Delay beyond this period entitles the buyer to compensation.

Is the 25% retention on paid amounts or contract value?

What is a ring-fenced scheme (PAF)?

Can I rescind for delay before the tolerance period?

What is the late delivery compensation amount?

How is the refund amount in a termination calculated?

What is the occupation fee and when does it apply?

How long does the developer have to refund the amounts?

Frequently asked questions

What is the maximum percentage a developer can retain in an off-plan property termination?

Article 67-A, §1, II of Lei 13.786/2018 caps retention at 25% of the amount the buyer paid; that ceiling rises to 50% when the project is under the segregated-assets regime of Lei 10.931/2004, under §5 of the same article, and no contract clause can exceed those percentages.

Does the brokerage commission count toward the termination retention percentage?

No. Under Article 67-A, §1, I of Lei 13.786/2018, brokerage commission already paid is deducted in full and cumulatively with the retention, meaning it adds to the deduction from the amount paid instead of being absorbed by the same 25% or 50% percentage.

How many days of delay in an off-plan property delivery does the law tolerate?

STJ Tema 996, decided in REsp 1.729.593/SP, validates a contractual grace-period clause of up to 180 calendar days, counted from the delivery date set in the contract; only delay beyond that period generates lost-rent-style damages.

Does Lei 13.786/2018 apply to any off-plan property contract?

No. The law only applies to contracts signed on or after December 28, 2018, when it took effect; a contract signed before that date follows the rules in force at the time, without this law's retention caps or grace-period criterion.

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Brazil Off-Plan Property Termination Under Lei 13.786/2018

Off-Plan Property Termination in Brazil: How the Lei 13.786/2018 Retention Works

Two scenarios, two different legal caps

In a contract termination, Article 67-A of Lei 4.591/1964, added by Lei 13.786/2018, caps the developer's retention at 25% of the amount the buyer paid, rising to 50% when the project is placed under the segregated-assets regime (patrimônio de afetação) of Lei 10.931/2004, under §5 of the same article. The calculator corrects the total paid by the contractual index before applying the entered retention percentage, and it caps that percentage at the legal ceiling whenever the entered value exceeds 25% or 50%, depending on the case; brokerage commission already paid is deducted in full and cumulatively with the retention, under Article 67-A, §1, I, meaning it adds to the deduction instead of being absorbed by the same percentage.

The deadline for the developer to return the balance also changes depending on the project's regime: under the segregated-assets regime, the refund is due within 30 days of the occupancy permit (habite-se) being issued, under Article 67-A, §5; outside that regime, the refund is a single payment due within 180 calendar days counted from the termination date, under §6 of the same article. When the buyer had already occupied the unit before the termination, the calculator also deducts occupancy compensation, calculated at 0.5% per month of the contract value for each month of actual use, a percentage courts frequently apply for this compensation.

The real trap in construction delay sits in the grace period. STJ Tema 996, decided in REsp 1.729.593/SP, validates the contractual grace-period clause of up to 180 calendar days for delivery, counted from the date the contract set; only delay beyond those 180 days generates lost-rent-style damages, calculated using the same 0.5% per month of the property value referenced for occupancy compensation in a termination. On top of that, Lei 13.786/2018 does not apply retroactively: it only governs contracts signed on or after December 28, 2018, so a contract signed before that date is not subject to this law's retention caps or its grace-period criterion.

Termination and delay, two calculations side by side

Termination with a contractual retention above the legal cap

Input: Total pago de R$ 60.000,00, retenção contratual de 30%, corretagem de R$ 5.000,00, sem patrimônio de afetação, valor corrigido pelo índice contratual até R$ 61.906,62
Expected output: Retenção travada em 25% (R$ 15.476,66), corretagem deduzida à parte (R$ 5.000,00); valor a devolver R$ 41.429,96

Construction delay beyond the 180-day grace period

Input: Entrega prevista para 01/06/2025, entrega real hipotética em 01/08/2026, tolerância contratual de 180 dias, valor do contrato R$ 300.000,00
Expected output: Atraso de 8 meses além da tolerância; lucros cessantes de R$ 1.500,00 por mês, total de R$ 12.000,00

Delay still within the grace period

Input: Entrega prevista para 01/06/2025, entrega real hipotética em 01/10/2025, tolerância de 180 dias
Expected output: Atraso de 0 meses após o desconto da tolerância; nenhum lucro cessante calculado

Full tool FAQ

What is the tolerance period for property delivery?

Is the 25% retention on paid amounts or contract value?

What is a ring-fenced scheme (PAF)?

Can I rescind for delay before the tolerance period?

What is the late delivery compensation amount?

How is the refund amount in a termination calculated?

What is the occupation fee and when does it apply?

How long does the developer have to refund the amounts?

Frequently asked questions