Consumer rights when buying property: what does the CDC guarantee that the developer doesn't tell you?

Many people think the Brazilian Consumer Protection Code is for returning a defective phone — and forget that it also governs the biggest purchase of their lives. When you buy as an end user from a professional developer, builder or land subdivider, a consumer relationship may exist: the CDC applies, with an arsenal of protections the company's printed contract rarely mentions.

A real estate consumer relationship is one in which the buyer acquires the property as the end user from a professional supplier. In this article, we will cover the five pillars of the CDC applied to real estate — information, binding advertising, the nullity of abusive clauses, the defects regime and easier access to a defense — and when the CDC does not apply (a purchase between private individuals, governed by the Brazilian Civil Code).

When is a property purchase protected by the CDC?

When there is a professional supplier on one side and an end user on the other (arts. 2 and 3 of the CDC). Buying an off-plan apartment, a unit from the developer's inventory, a lot in a subdivision: a consumer relationship. Buying a used house directly from another family: a civil relationship, governed by the Brazilian Civil Code (hidden defects, loss of title to third parties). The distinction defines deadlines, the burden of proof and the size of your shield — and it is the first question a lawyer asks when reviewing the case.

What does it mean to say that “advertising is binding”?

It means that the brochure, the scale model, the ad and a sufficiently precise promise by a broker acting for the supplier are part of the contract (art. 30 of the CDC), even if the signed instrument says less. An advertised item that goes undelivered gives the consumer the choice in art. 35: demand performance, accept an equivalent, or terminate with damages. The practical corollary: sales material is a legal document — keep everything, from the first ad to the broker's last message.

After the applicable delivery period, estimate compensation; the statutory 1% monthly rate requires a contract from 28 December 2018 within art. 43-A, a compliant buyer and continuation of the contract.

Which clauses in a real estate contract are considered abusive?

Art. 51 of the CDC strikes down as void any clause that places the consumer at an unfair disadvantage. In the real estate market, the champions: penalties provided only against the buyer (the STJ — Brazil's Superior Court of Justice — uses the penalty clause as a compensation benchmark for a defaulting developer under Theme 971, not as an automatic rule voiding every unilateral penalty), a choice of forum that hampers the consumer's defense, advance waivers of rights, and shifting the business's typical risks onto the consumer. A void clause does not have to be “accepted because I signed”: it simply has no effect.

Improper charges: when is the refund doubled?

A consumer who pays an improper charge may seek repayment; a double refund under art. 42 of the CDC turns on conduct contrary to objective good faith, except for a justifiable mistake, without requiring malicious intent. For contractual payments unrelated to public services, check the temporal limitation for payments after 30 March 2021. Examples include SATI (abusive under Theme 938), unagreed fees and construction interest contrary to the agreement. Art. 6, VIII, allows the judge to shift the burden of proof in the consumer’s favor where the allegations are plausible or the consumer lacks evidential resources; this is not automatic or a transfer of every factual issue to the developer.

Hypothetical example: Renata's purchase in Tatuapé

Imagine Renata buying an R$ 420 thousand apartment from a developer. In the contract: a 10% penalty only against her, a forum in another judicial district and three “service fees” adding up to R$ 14 thousand. Based on the CDC, an extrajudicial notice could question the validity of the clauses (art. 51), seek a refund of the fees (art. 42) and record the advertising material promising a double parking space — absent from the contract. One possible settlement, not an actual or guaranteed outcome, would be: fees refunded, the double parking space formalized in an amendment and the penalty clause mirrored for both sides. The example illustrates points to negotiate, subject to evidence and legal requirements.

The most common (and costly) mistakes

1. Thinking a signed contract ends the discussion. An abusive clause is void even when signed (art. 51, CDC). Risk: performing obligations that don't exist.
2. Treating the broker's verbal promise as “just talk”. Messages and ads are binding (art. 30). Risk: giving up items you paid for in the price.
3. Paying strange charges without requesting the legal basis in writing. Risk: losing evidence of payment and conduct contrary to objective good faith, relevant to the refund.
4. Applying the CDC where it doesn't apply (a purchase between private individuals). Risk: using the wrong deadlines and arguments and missing the Civil Code's correct windows.

Actionable checklist for the real estate consumer

• Confirm whether the seller is a professional supplier (CDC) or a private individual (Civil Code);
• Keep all the advertising and sales conversations;
• Flag in the contract: penalties (are they mutual?), forum, fees and adjustment indexes;
• Demand the legal basis of every extra charge in writing;
• Always complain through a channel with a filed record; keep numbers and dates;
• At an impasse, consider an extrajudicial notice before going to court.

Property defects: check when the deadline starts

For durable goods, art. 26 of the CDC provides 90 days to complain of apparent or readily detectable defects, from actual delivery. Hidden defects run from discovery. A proven complaint to the supplier bars expiry until an unequivocal negative response. Damages claims and other warranties may follow different rules; 90 days is not a universal deadline for every lawsuit.

Frequently asked questions

Does the CDC apply to every property purchase?

No. It applies when the seller is a professional supplier — a developer, builder or land subdivider — and the buyer is the end user (arts. 2 and 3 of the CDC). In a purchase between private individuals (a used home sold by a private owner), the Brazilian Civil Code applies, with its own rules on hidden defects and loss of title. Brokerage alone does not turn a private sale into a consumer relationship with the seller; the brokerage service may form a separate relationship. The distinction changes deadlines and strategies.

Does a broker's promise over WhatsApp have legal force?

It does. A sufficiently precise offer, made through any channel, binds the supplier (art. 30 of the CDC) — and messages from a broker working for the developer form part of the offer. If the promise is not kept, the consumer can demand specific performance, accept an equivalent, or terminate the contract with damages (art. 35 of the CDC). Keep the conversations.

What are the most common abusive clauses in real estate contracts?

Unilateral penalties, advance waivers of rights, shifting business risks and a forum that hampers the defense need review. Theme 971 treats a buyer-only penalty as a benchmark for compensation for the seller’s default, with monetary judicial assessment where obligations differ in kind; it does not automatically void every unilateral penalty. Clauses that are actually abusive are void under art. 51 of the CDC, even if signed.

I was improperly charged by the developer: do I get double back?

An improper payment may qualify for a double refund with adjustment and interest, except where there is a justifiable mistake (art. 42 of the CDC). The STJ applies objective good faith, without requiring proof of malicious intent. For contractual payments unrelated to public services, the temporal limitation covering payments after 30 March 2021 must be checked. Theme 938 held SATI charges abusive, but each refund depends on the facts and applicable temporal rules.

When should I see a real estate consumer-law lawyer in São Paulo?

Before signing, to review and negotiate clauses, and promptly after an unexplained charge, unfulfilled offer or defect. For durable goods, art. 26 of the CDC generally allows 90 days to complain of apparent defects from actual delivery; hidden defects run from discovery. Other claims have their own rules. A substantiated notice may facilitate settlement, without guaranteeing it.

The CDC helps balance the contractual relationship

When buying from a developer or builder, you are not negotiating as equals: you are negotiating against a standard-form contract drafted by the other side. The Brazilian Consumer Protection Code exists precisely to rebalance that table — advertising that binds, abusive clauses that fall, improper charges that come back. Knowing these rights before signing is worth money; knowing them afterwards is still worth a case.

At Falchet e Marques Sociedade de Advogados, a law firm in São Paulo (Av. Paulista), we apply the CDC to property purchases at every stage — reviewing standard-form contracts, recovering charges, enforcing offers and handling defects — working out of court and before the São Paulo State Court (TJSP) and Procon-SP.

Talk to our team on WhatsApp: +55 11 95901-1854 — send us your contract or the charge you received and find out which CDC rights apply to your case.