A retomada de obras pelos adquirentes no caso de falência do incorporador imobiliário: uma interpretação da Lei nº 4.591/64 à luz do direito humano fundamental à moradia e da função social dos contratos

Abstract

The stoppage of works by the real estate developer was aggravated by the recent COVID 19 pandemic, impacting the architecture of cities with masonry “skeletons”, or, simply, foundations in plots, without any trace of construction. This scenario makes the expectation of owning a home unfeasible for the original purchasers, who entered into an agreement with the developer, to purchase and sell future real estate unit, commonly known “buying a property off the ground plan”. Many families entrusted the money of a lifetime`s work, or sold what they owned for the acquisition of a future housing unit. However, they had to suffer the consequences of bad business management or bad faith on the part of developers and financial institutions, which, ultimately, caused the bankruptcy of the real estate developer or the unjustified stoppage of the development. It turns out that the solution to this situation is provided for in the Law of Condominiums and Real Estate Development (Law No. 4,591/64), consisting of the extrajudicial procedure for resuming works through the dismissal of the developer and the setting-up of a commission of representatives of the original purchasers, formally constituted, to manage revenues and expenses of the project. On the other hand, the abore-mentioned law itself, which regulates the resumption procedure, provides in its article. 31-F, § 11, that the purchasers, in the event of bankruptcy of the developer, will be automatically subrogated to the charges relating to the financing of the works contracted by the original developer, thus making it impossible, in many cases, the effective resumption and delivery of future real estate units, for housing purposes. On account of the insufficiency of the specific legislation (Law nº 4.591/64) in providing mechanisms that effectively ernable the continuity of works. the hypothesis of complementing law nº 4,599/ 64 is put forth, with a view constitutional payment of Law nº 4.591/64 arises, with a view to an interpretation in the light of the social role of contracts and the realization of the fundamental human right to housing, based on Article 170 of the Federal Constitution.