Cancelling an off-plan purchase in Brazil: refund rules

Which cancellation is meant

Article 67-A covers the undoing of a contract made exclusively with the developer, by distrato (agreed termination) or by termination for the buyer’s absolute default. It does not govern the cases below, which have their own rules:

• Developer delay beyond the 180-day tolerance: refund of all sums plus the contract penalty within 60 days (art. 43-A).
• Withdrawal at a sales stand within 7 days: refund in full, including commission (art. 67-A, paragraph 10).
• Missing items in the summary box not corrected within 30 days: just cause for the buyer to terminate (art. 35-A, paragraph 1).

What is deducted from the refund

Under article 67-A, the following are deducted cumulatively:

1. The full broker’s commission.
2. The penalty clause, which cannot exceed 25% of the amount paid. The developer does not need to prove loss to demand it (paragraph 1).

If you had the unit made available to you (for example, keys delivered), you also answer for (paragraph 2):

• Property taxes on the unit.
• Condominium shares and residents’ association dues.
• The value of use, 0.5% on the updated contract value, pro rata per day.
• Other charges and expenses set out in the contract.

These debts can be offset against the refund (paragraph 3). Deductions are limited to the amounts you actually paid, except the charge for use (paragraph 4). The cancellation consequences must have been signed separately in the summary box (art. 35-A, paragraph 2).

Calculation, not an official figure: if you paid R$ 200,000 to the developer and the contract sets the maximum 25% penalty, the penalty is R$ 50,000. From the corrected R$ 200,000 you subtract R$ 50,000 and the commission; the balance is refunded, minus use charges if any. The actual penalty is what the contract says, not necessarily the cap.

When the money comes back

The long deadlines are the main cost of cancelling. Check in the summary box whether the development is under afetação: see patrimônio de afetação.

Ways to reduce or avoid the penalty

• Substitute buyer (paragraph 9). No contractual penalty applies if the buyer who caused the cancellation finds a replacement who takes over the rights and obligations, provided the developer agrees and approves the replacement’s credit and financial capacity.
• Agreed termination (paragraph 13). The parties may sign a specific distrato with terms different from the law.

When a loan or auction is involved

Paragraph 14 covers contracts for the sale of property in instalments, with or without security, or with fiduciary sale (alienação fiduciária), when the property is auctioned in a court or out-of-court execution or termination proceeding: the refund then follows the criteria of the special law or the general rules of execution. For the lender’s auction rules see buying at a property auction and alienação fiduciária.

Deposits in a different type of contract

Outside the incorporation law, deposits (arras) follow the Civil Code. Under article 418, as rewritten by Lei 14.905/2024, if the person who gave the deposit does not perform, the other party may end the contract and keep it; if the person who received it does not perform, the giver may end the contract and demand it back plus the equivalent, with monetary correction, interest and lawyer’s fees. If a right of regret was agreed, article 420 limits the effect to losing the deposit or returning it plus the equivalent. See purchase agreement and deposit.

Which professional to consult

A lawyer registered with the OAB can read the summary box and calculate the refund, and an accountant can check indexation. The reader checks professional registrations on official registers. For the whole sequence, see buying a home in Brazil step by step.