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: legal measures may be available — 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?

A sufficiently precise advertised offer binds the supplier (CDC art. 30). If the promised barbecue area is not delivered, assess performance, equivalent supply or termination with restitution and damages (art. 35). Keep brochures, scale models, specifications, plans and broker proposals; not every merely illustrative element is a precise contractual obligation.

Which off-plan charges are improper?

Two charges deserve scrutiny: SATI, held abusive in Theme 938 when imposed on the buyer, and brokerage, which can be passed on with prior disclosure of the total price and a separately identified commission. Check receipts, legal grounds and limitation periods before seeking restitution. Double repayment under CDC art. 42 does not necessarily require subjective bad faith: it concerns conduct contrary to objective good faith, allows for justifiable error and is subject to STJ temporal limits. In an illustrative calculation, R$ 25 thousand in charges on a R$ 500 thousand property equals 5%; that does not make the whole sum unlawful, since each charge needs review.

If there is also a delay, our construction delay calculator provides an informational estimate, not proof of a debt.

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

At inspection, record cracks, window defects and leaks with photographs and written reservations; seek technical advice and a repair timetable, without assuming every defect justifies refusing the keys. For apparent defects in durable goods, the CDC provides 90 days from delivery; for hidden defects, from when they become evident (art. 26). A proven complaint to the supplier prevents expiry of that period until an unequivocal refusal. The five years in Civil Code art. 618 are a structural soundness and safety warranty, not a general filing deadline. STJ case law allows ten years for contractual damages; under art. 618's civil regime, distinguish the 180-day period for rescission or price reduction. The remedy, applicable regime and starting date require review.

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

Charges require review of actual possession, genuine availability of the unit and communications, not just the occupancy permit. STJ Theme 886 considers the material relationship and the condominium's knowledge, but its claim and reimbursement between buyer and seller are distinct issues. Theme 1349 proposes reviewing concurrent standing and remained referred for judgment when checked for this update. Neither automatic refunds nor one universal rule should be assumed. Also distinguish IPTU: liability to the municipality follows tax rules, while allocation between the parties depends on the contract and its validity.

Hypothetical example: the Duarte family's apartment

Hypothetical example: the Duarte family receives an apartment four months late, with a bedroom leak and no advertised playground. They can record reservations, request repairs and the promised facility, attach brochures and seek review of the R$ 9,800 SATI payment. Repairs within 60 days, a price reduction for missing amenities and a refund would be a proposal to negotiate, not an actual or guaranteed outcome. Any delay compensation also requires separate analysis. Preserved documents support each request.

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: difficulty proving the complaint and possible expiry; the law requires a proven complaint, not exclusively a written one.
4. Paying every charge “so the handover isn't held up”. Risk: paying disputed amounts; single or double restitution depends on the applicable requirements.

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).

What if the delivered floor area differs?

Compare the plans, specifications, property register and technical measurements, distinguishing private, common and total areas. Consequences depend on the offer, contract and applicable regime, including Civil Code arts. 500 and 501 where relevant. Additional area, a price reduction or termination are not automatic; the deadline needs separate review and should not be confused with the CDC's 90-day defect period.

Frequently asked questions

Is what the developer advertised in the brochure binding?

Yes, where the information or advertising is sufficiently precise. It becomes part of the contract and binds the supplier (CDC art. 30). For non-performance, art. 35 allows specific performance, an equivalent supply, or termination with restitution and damages, as appropriate. Keep brochures, ads, plans and messages: the exact offer is evidence.

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

In Theme 938, the STJ found it abusive to impose SATI or a similar service tied to the purchase. Brokerage may be passed on if the total price and separately identified commission are disclosed beforehand. Restitution depends on payment, evidence and the applicable limitation period. Double repayment under CDC art. 42 turns on breach of objective good faith, not mandatory proof of subjective bad faith, subject to justifiable error and the case law's temporal limits; it is not automatic.

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

For apparent defects in durable goods, the CDC provides 90 days from delivery; for hidden defects, from when they become evident (art. 26). A proven complaint to the supplier prevents expiry of that period until an unequivocal refusal. The five years in Civil Code art. 618 are a structural soundness and safety warranty, not a general filing deadline. STJ case law allows ten years for contractual damages; under art. 618's civil regime, distinguish the 180-day period for rescission or price reduction. The remedy, applicable regime and starting date require review.

Can I be charged condominium fees before receiving the keys?

Charges require review of actual possession, genuine availability of the unit and communications, not just the occupancy permit. STJ Theme 886 considers the material relationship and the condominium's knowledge, but its claim and reimbursement between buyer and seller are distinct issues. Theme 1349 proposes reviewing concurrent standing and remained referred for judgment when checked for this update. Neither automatic refunds nor one universal rule should be assumed.

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

As soon as the issue appears, before signing an unreserved release or accepting a settlement. Some deadlines are short; strategy depends on documents, dates and the remedy sought. A documented notice helps preserve evidence and may affect CDC art. 26's period, but does not guarantee an out-of-court resolution or replace legal assessment.

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

Precise offers, disputed charges, defects and unit expenses require different responses. Sales material, receipts, inspection reports and notices help reconstruct events and assess deadlines. Prompt action helps preserve rights but does not mean every issue produces the same remedy or damages.

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.