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Decision dismissed the duty to indemnify, if the construction company is not to blame for the delay in the property’s delivery

Decision dismissed the duty to indemnify, if the construction company is not to blame for the delay in the property’s delivery

7/30/2021

In a decision published on 06/25/2021, the 11th Civil Chamber of the Court of Justice of Rio de Janeiro upheld a sentence that rejected the indemnity for moral damages and damages to property, by lack of proof that the second delay in the delivery of the property resulted from the construction company’s faulty conduct.

In this case study analysis, an apartment was purchased off of the floor plan and there was a delay in the delivery of the keys. As a result, the parties settled out of court a fine for the delay, in which a new date for delivery of the project was also set.

Nevertheless, that there was a second delay of more than five months in relation to the new consigned date and, for this reason, the buyer filed a lawsuit for additional indemnity.

According to the decision, although it is      possible to demand additional indemnity, given the fact that the coming into possession extended beyond the agreed date, the buyer should have proved that the construction company was at fault for the delay’s recurrence, which was not done.

 

In addition, the Court of Justice considered that there are situations beyond the control of the construction company, such as bureaucratic measures until the delivery of the keys, such as, the installation of the condominium and the official registration of the condo’s units, which contribute to the delay .

 

Regarding, the Court of Justice of Rio de Janeiro understood that, although the “effective availability of the legal asset to the consumer occurs in data subsequent to the conclusion of the agreement, such circumstance does not, per se, give rise to an obligation of additional damages, provided that the period elapsed to do so is reasonable. ”

 

Thus, the decision by the Court of Justice of Rio de Janeiro deserves to be highlighted, as it is at odds with most court decisions that impose penalties in the property’s delivery of real estate, regardless of the construction company’s fault or not. In the analyzed precedent, the government bureaucracy, the need for proof of guilt and the reasonable time lapse were taken into account for the non-application of penalties as valid arguments to exclude the responsibility of the construction company, and, consequently, reject the indemnity, even if additional.

Coauthors: Débora Carvalho dos Santos and André de Martini Menossi

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