Delayed property delivery: what are the buyer's rights, and how do you calculate the compensation?

Would you rather unwind the deal than wait? See how we handle property purchase rescission in São Paulo — and what is argued over the refund of the amounts paid.

A delayed handover can postpone a wedding or move, require a lease renewal and cause unplanned expenses. Law 13,786/2018, effective from 28 December 2018, introduced remedies into Law 4,591/1964, but their application depends on the contract, the obligations and responsibility for the delay.

Compensable delay normally begins after the contractual delivery deadline plus any validly agreed grace period. This article explains the applicable regime, start and end dates, the buyer’s options, other possible losses and the evidence needed for assessment.

Before the arithmetic: the date of the contract sets the regime

Law 13,786/2018 was published in the Official Gazette on 28 December 2018 and took effect on the date of publication. Ruling on the repetitive appeals concerning construction delay, Brazil's STJ held that it does not apply to contracts predating its entry into force (REsp 1,498,484/DF, Second Section, judged 22 May 2019), grounded on art. 5, XXXVI, of the Constitution and art. 6, § 2, of the LINDB. Hence two very different realities:

• Contract from 28 December 2018, governed by art. 43-A. A grace period of up to 180 calendar days must be expressly, clearly and prominently agreed. After it expires, a buyer who did not cause the delay may terminate and seek a full refund plus the agreed penalty under paragraph 1. A buyer who has performed their obligations and retains the contract may claim 1% per month of the amount actually paid, apportioned by day and due at handover under paragraph 2. Paragraph 3 prohibits combining both penalties.
• Earlier contract. The statutory 1% does not apply automatically. Review the penalty, calculation base, validity, losses and case law. A 0.5% clause does not remove the need to assess its base or adequacy. Under STJ Theme 971, a penalty imposed only on the buyer in an adhesion contract provides a reference for compensation for the seller’s breach, with unlike obligations converted into money by judicial assessment—not a mechanical reversal.

The 1% examples below assume a contract governed by art. 43-A and a buyer who has performed their obligations and keeps the purchase. For contracts predating Law 13,786/2018, examine valid clauses and case law without automatically importing that percentage.

From what point does the delay "count" legally?

Art. 43-A permits up to 180 calendar days, expressly, clearly and prominently agreed. This is not an automatic extension: a shorter validly agreed period must be respected. Only a valid 180-day clause makes day 181 the relevant starting point; without a valid clause, the analysis starts on the day after the contractual deadline.

Paragraph 2 makes compensation due at handover. The occupancy permit —habite-se— is not necessarily delivery: assess the keys, lawful usability, possession and any unjustified refusal by the buyer to accept delivery, not merely the developer’s notice.

Route 1 — Undo the deal: what do I get back?

Within art. 43-A, once the valid grace period expires and the buyer has not caused the delay, termination may be sought for the developer’s breach. Paragraph 1 provides for return of all amounts paid, monetary adjustment and the agreed penalty within 60 calendar days of termination, not from the start of the delay. This is distinct from deductions applicable when a buyer voluntarily abandons the purchase. Any buyer-only penalty must be assessed under Theme 971, with the appropriate judicial adjustments.

See our analysis of STJ Themes 970 and 996 on construction delays.

For an initial estimate subject to the contract’s conditions, use the construction-delay compensation calculator.

Route 2 — Keep the purchase: how do you calculate the monthly compensation?

Under contracts governed by art. 43-A and made from 28 December 2018, a buyer who has performed their obligations and retains the purchase may claim 1% of the amount actually paid to the developer for each month of delay, apportioned by day, with contractual monetary adjustment and payment due at handover. It is not automatically 1% of the total price or outstanding balance.

A simplified hypothetical calculation: a constant applicable base of R$ 300,000 and seven complete compensable months gives R$ 300,000 × 1% × 7 = R$ 21,000, before adjustment. Payments on different dates require checking each period’s base, as well as the start, end and partial months. Earlier contracts require analysis of clauses and case law without automatic use of 1%.

Under STJ Theme 970, a late-performance penalty compensates for delay and generally cannot be combined with lost profits when it is equivalent to the rental value. Where it is lower, case law permits assessment of additional losses without compensating the same loss twice. Civil Code art. 413 requires equitable reduction for the statutory cases of partial performance or a manifestly excessive penalty; it does not allow arbitrary changes.

Can you get emotional-distress damages for construction delays?

Delay alone does not automatically establish non-material damage —dano moral. A concrete impact beyond ordinary inconvenience must be shown in light of all the circumstances. A prolonged delay, disrupted wedding or move, and serious family difficulties may be relevant, but two lease renewals or expense receipts alone do not guarantee an award.

Hypothetical example: the Torre Aurora delay

Imagine Felipe bought an off-plan unit at Torre Aurora for R$ 600,000 in 2022, with a valid 180-day grace period. He has performed his obligations and keeps the purchase. Assume the applicable amount actually paid to the developer remains R$ 350,000 and the exact dates establish ten full compensable months: R$ 350,000 × 1% × 10 = R$ 35,000, before adjustment.

If R$ 4,200 of condominium charges had also been collected before delivery, liability, possession and communications would need review before assessing a refund. Rent and possible non-material damages require separate analysis, not automatic addition. This is a fictional calculation example, not a client case or a verified recovery.

The most common (and costly) mistakes

1. Signing a broad release when the keys are handed over. Risk: signing away your own compensation rights out of haste.
2. Accepting a settlement without comparing available claims. Risk: comparing proposals based on different periods, amounts or obligations.
3. Applying the statutory 1% to a contract signed before 28 December 2018. Risk: starting from a figure that is not yours and negotiating on the wrong basis.
4. Failing to retain rent and expense evidence. Risk: making losses that require those documents harder to prove.
5. Confusing the occupancy permit (habite-se) with delivery. Risk: accepting a shorter delay count than you are owed.
6. Postponing the limitation review. The period depends on the claim and its starting point. Risk: losing time to gather evidence or allowing the applicable period to expire.

An actionable checklist for the buyer facing a delay

• Confirm the signing date of the contract: before or on/after 28 December 2018;
• Find in the contract: the delivery date, the tolerance clause, the penalty clause and the definition of "delivery";
• Calculate the compensable delay (contractual date + tolerance → keys);
• Organise payment amounts and dates, check performance of your obligations and compare termination with retaining the purchase;
• Gather evidence: the contract, payment receipts, rent paid during the period, the developer's communications;
• Give written notice before accepting any deal — and never sign a broad release without a review.

Frequently asked questions

The developer is late delivering my property: what am I entitled to receive?

It depends on the contract date and regime. For contracts made from 28 December 2018 and governed by art. 43-A, after a valid grace period expires, a buyer who did not cause the delay may terminate and seek a refund, monetary adjustment and the agreed penalty within 60 calendar days of termination. A buyer who has performed their obligations and retains the purchase may claim 1% per month of the amount actually paid to the developer, apportioned by day and due at handover. Both penalties cannot be combined. Earlier contracts and non-material damages require separate analysis.

How do you calculate the 1%-per-month delay compensation?

The contract must fall within art. 43-A, be made from 28 December 2018, and the buyer must have performed their obligations and retain the purchase. Apply 1% to the amount actually paid to the developer for each compensable month, apportioned by day, with contractual monetary adjustment. A constant base of R$ 250,000 over exactly eight months gives R$ 20,000 before adjustment. Payments on different dates require checking each period’s base; the full purchase price is not a substitute. Compensation falls due at handover.

What if the contract was signed before 28 December 2018?

Law 13,786/2018 does not apply directly to contracts predating its effect, as held in REsp 1,498,484/DF. The 1% is not automatic. Review the penalty, base, validity and STJ Themes 970 and 971. Where an adhesion contract imposes a penalty only on the buyer, Theme 971 treats it as a reference for the seller’s breach, converting unlike obligations into money by judicial assessment; it is not a simple mathematical reversal.

Can I claim the rent I paid during the delay?

Distinguish rent actually paid, lost profits and the late-performance penalty. Theme 970 generally excludes combining the penalty with lost profits when it matches rental value. Where it is lower, case law allows assessment of additional losses. The claim and evidence depend on the facts, without automatically adding every penalty and rent payment or compensating the same loss twice.

Does a delivery delay entitle you to damages for emotional distress?

Not automatically. A simple delay is normally a contractual breach. Non-material damage requires a concrete impact beyond ordinary inconvenience, assessed with all the circumstances. A lengthy delay, lease agreements and expenses may be relevant but do not by themselves guarantee that award.

How long do I have to claim compensation for the delay?

For contractual liability without a special limitation period, the STJ generally applies the ten years in Civil Code art. 205, following EREsp 1,280,825/RJ. Each claim’s nature, starting point and any suspension or interruption must be checked; related claims do not necessarily share a period. Legal argument matters, but citing that precedent does not create the ten-year period. Review the case promptly.

When should you talk to a lawyer about a property delivery delay?

Preferably before signing a handover document, broad release or settlement. Review the contract, grace period, payments, performance and evidence before comparing termination with retaining the purchase. Advice helps clarify waivers and formulate claims but cannot guarantee a particular award.

The delay has a benchmark — and it depends on the date of the contract

Contracts governed by art. 43-A and earlier contracts can have different legal bases. Check the valid grace period, responsibility for delay, buyer performance, payments and handover before comparing termination and compensation. Documenting these facts supports a verifiable assessment and avoids double counting.

Falchet e Marques Sociedade de Advogados, based on Avenida Paulista in São Paulo, assesses buyers’ rights in construction delays, including termination, compensation and other applicable losses, through negotiation or court proceedings.

Talk to our team on WhatsApp: +55 11 95901-1854 — tell us the signing date of the contract, the contractual delivery date and how much you have already paid. Those three facts are where the initial assessment of the case starts.