Buying Off-Plan in Brazil

What you own while the building goes up

An off-plan purchase is called a compra na planta. You sign the promessa de compra e venda, a promise-of-sale contract, for a unit that does not exist yet. You pay in stages during the works and take a deed at the end. Until that deed is registered, you hold a contract right and the title stays with the developer.

Law 4.591/1964 calls the activity incorporação imobiliária: promoting and carrying out the construction of a building with separate units for sale (art. 28). The party in charge is the incorporador. It is a federal law, so these rules work the same for a launch in Itaim Bibi, Balneário Camboriú, Meireles or Ponta Verde.

The promise is stronger than it sounds. Under art. 32, §2, these contracts cannot be withdrawn from, and once registered they give a real right that holds against third parties, plus a right to force the transfer in court. That protection depends on the registration. A signed promise left in a drawer does not have it.

A foreign buyer needs no permit for an apartment in a city. The limits on foreigners apply to rural land, which can matter if a "project" is a subdivision outside town limits. That case is covered in foreigners buying rural land. You do need a CPF before you close. The main purchase guide lays out the wider path.

The incorporação registration

A developer may sell or encumber units only after registering a memorial de incorporação at the Registro de Imóveis (art. 32). Selling without meeting the law's requirements is an offense with a fine worth 5 to 20 times the top minimum wage (art. 66). Making a false statement about the project is a crime with one to four years in prison (art. 65).

The registration number and the registry's name must appear on ads, proposals and contracts, with an exception for classified ads (art. 32, §3). If a sales sheet has no number, ask why before you ask about the price.

Two time limits matter. If the project is not under way 180 days after registration, the developer may keep selling only after filing updated certificates, and must repeat that every 180 days (art. 33, as rewritten by Law 14.382/2022). The carência period cannot run past the validity of the registration and cannot be extended (art. 34).

If the developer abandons the project in that window, it must tell the registry and each buyer in writing. If it does not repay within 30 days of the notice, buyers can move straight to collection proceedings (art. 36).

The location needs its own checks. A beachfront plot in Boa Viagem may sit on federal coastal land, and a hillside site should go through the flood and landslide checks.

Patrimônio de afetação

Patrimônio de afetação ring-fences one project from the rest of the developer's business. The land, the works and the money linked to that building are kept apart, and they answer only for that building's debts (art. 31-A, §1). The developer chooses whether to use it: the law says "a critério do incorporador". You check for it in the matrícula, because it is created by an entry at the registry (art. 31-B).

Developers have a tax reason to use it. The special regime in Law 10.931/2004 taxes project revenue at a combined 4% of monthly receipts, and it requires the project to be ring-fenced (arts. 1 to 4).

The duties are concrete (art. 31-D). The developer must keep each project's assets and accounts apart, use a dedicated bank account, keep full books, and give the buyers' commission a progress report and a balance sheet at least every three months. The commission or the lender may appoint someone to inspect, at their own cost (art. 31-C).

What happens if the developer goes bankrupt

Bankruptcy does not reach the ring-fenced project (art. 31-F). Buyers meet in an assembly, which must happen within 60 days, and by two-thirds of the buyers' votes on first call, or an absolute majority on second call, they decide to continue the works or liquidate. Unpaid price balances are then paid to the commission and stay tied to the building. The commission must also auction unsold units within 60 days of the assembly.

That is real protection, and it has limits. It keeps the project out of the general bankruptcy. It does not guarantee a finished building at the agreed price, and buyers may face a shortfall if the money runs out.

The trade-off a buyer accepts

The same regime raises what the developer may keep if you walk away, and it delays your refund.

The bank's lien on the land

A developer may borrow against the land to fund the works. Item X of the quadro-resumo must disclose it, and the matrícula will show it. The question is what happens to your unit if the developer stops paying that bank after you have paid the developer.

For a mortgage, the answer has been settled for years. Súmula 308 of the STJ, Brazil's top court for federal law, says a mortgage between the builder and the bank has no effect on the buyer of the unit.

Some construction loans use a fiduciary sale, the alienação fiduciária, where the lender holds resolvable title. On this the STJ's panels have split:

• The Third Panel extended Súmula 308 to a fiduciary sale in REsp 1.576.164 (2019), because the rule exists to protect good-faith buyers who have paid.
• The Fourth Panel refused by majority in REsp 2.130.141 (2025), because a fiduciary debtor who sells is selling something that belongs to the creditor. The rapporteur also noted that the súmula grew out of the housing finance system.

This research found no ruling from the wider Second Section settling this, so treat it as open. What to check: the type of guarantee, whether the bank must release each unit on payment, and which account your installments must go to. Ask your lawyer to read this clause with the lender's terms next to it.

How the INCC grows your balance

The INCC is the Índice Nacional de Custo da Construção, a construction cost index published by the FGV. During the works, off-plan contracts commonly raise the unpaid balance by this index. The price you sign is therefore a starting figure in reais, and the balance moves until you pay it.

A worked example

Take a unit at R$ 900,000 (about US$ 166,050) with R$ 510,000 due at delivery in 36 months. These figures are arithmetic and do not forecast anything.

• At 6.75% a year, the R$ 510,000 becomes about R$ 620,400. That is R$ 110,400 more.
• If the 2021, 2022 and 2023 rates repeated, it becomes about R$ 657,500. That is R$ 147,500 more.

The monthly installments rise too, so the full cost is higher than these lines show. A buyer earning in another currency also carries the exchange rate on every payment. Sending money to Brazil covers the paperwork for each transfer.

The 36-month rule

Monthly adjustment is allowed only in contracts of at least 36 months (Law 10.931/2004, art. 46). Art. 47 voids any device that has the effect of shortening that minimum. São Paulo courts have applied this: a 2019 appeal (Ap. 1005815-91.2017.8.26.0348) held that a shorter contract must adjust yearly. In a 2023 first-instance case, a R$ 200 final installment set years ahead was treated as a device to stretch the term, and the developer had to repay the excess. These are São Paulo decisions and do not bind other states.

Interest on top

Some developers also charge interest before delivery, known as juros no pé. The STJ's Second Section held in EREsp 670.117 (2012) that this is not abusive, with commentators on the ruling stressing that the contract should state it. Item VII of the quadro-resumo must now give the rate, whether it is monthly or yearly, and the amortization system. Where a contract moves to another index at the habite-se, item V must state each index and its period.

The summary at the top of the contract

Law 13.786/2018, the distrato law, added art. 35-A to Law 4.591. Every contract must open with a quadro-resumo with 12 items. It is the fastest way to read a deal, and it gives you a remedy. If an item is missing, you can demand a fix, and the developer has 30 days to make it. If it is not fixed, that is grounds to end the contract (§1).

The cancelation terms in item VI only bind you if you gave specific consent by signing those clauses (§2). If you are signing through an attorney, the power of attorney has to cover this.

The commission line

A clause making the buyer pay the broker is valid only if the total price was disclosed first, with the commission shown apart (STJ Tema 938, REsp 1.599.511). The same ruling calls the SATI, a "technical advice" charge tied to signing, abusive. Tema 938 set a 3-year limit on claims to recover these payments. A commentary on the ruling says the STJ has since moved to 10 years for contract-based claims, so ask a lawyer and treat 3 years as the safe deadline. Commission paid to the broker counts when you cancel, as the next chapters show.

When delivery runs late

A contract may give the developer 180 calendar days of grace, if it says so clearly and prominently. Within that time there is no penalty and no right to cancel (art. 43-A). Past the 180 days, a buyer who did not cause the delay has two options, and they cannot be combined (§3):

• End the contract. You get back everything you paid plus the agreed fine, within 60 days (§1).
• Keep the unit. The developer owes 1% of the amount paid, for each month of delay, counted by the day, and corrected by the contract index (§2).

A worked example

You have paid R$ 300,000 and delivery comes 5 months after the grace period ends. The law gives R$ 3,000 a month, so R$ 15,000 in total before correction. A 70 m² unit in Recife at the FipeZAP average of R$ 64.39 per m² would rent for about R$ 4,507 a month, so the penalty may fall short of the rent you lose.

What the courts have added

Older repetitive rulings from the STJ are still cited, and they do not all fit a current contract:

• Tema 970: a late-delivery penalty set at about rental value generally cannot be stacked with lost rent.
• Tema 971: in standard contracts with a penalty only against the buyer, courts use it as a reference for the seller's default.
• Tema 996 (REsp 1.729.593): after the deadline and grace period, harm to the buyer is presumed, at rental value. Charging juros de obra (bank interest during construction) becomes unlawful, and the balance moves from the construction index to the IPCA, unless the IPCA costs the buyer more.

Tema 996's thesis is written for the Minha Casa, Minha Vida housing program. State courts have cited its reasoning in other sales, but a buyer of a higher-end unit should not assume it applies. Whether rent can be claimed on top of the 1% in a post-2018 contract is also unsettled. Art. 43-A bars stacking the two options above and says nothing about rent, so this is a question for a lawyer who has read your contract.

Canceling under the distrato law

A distrato is an agreed cancelation. Art. 67-A sets what a developer may keep when the contract ends because of the buyer. It deducts the full brokerage commission and a penalty capped at 25% of the amount paid, or 50% where the project has patrimônio de afetação. The developer does not have to prove any loss (§1). The refund is corrected by the contract index.

A worked example

You have paid R$ 245,000, and R$ 45,000 of that was the commission. Assume the contract sets the penalty at the legal maximum.

If the developer resells your unit first, what it owes you falls due within 30 days of the resale (§7). If you took possession, the developer may also charge 0.5% of the updated contract value, counted by the day, plus property tax, condominium fees and related costs (§2). Deductions cannot exceed what you paid, apart from the charge for use (§4).

Two ways to pay less

• The 7-day regret. For a contract signed at a sales stand or outside the developer's office, you can withdraw within 7 days by registered letter with proof of receipt, and everything comes back, commission included (§§10 and 11).
• A substitute buyer. If you find someone who takes over the contract, and the developer approves their registration and finances, no penalty applies (§9).

What is still being fought over

The 50% cap is under review. In 2026 the STJ's Second Section took up Tema 1466 as a repetitive appeal (REsp 2.258.565/SP): may the seller keep up to 50% when the buyer defaults on a post-2018 contract with patrimônio de afetação? No thesis had been set when this was written. Special appeals on the point are on hold at second instance and at the STJ, while trial courts and ordinary appeals continue. A decision reported in July 2026 upheld a 50% clause that was expressly agreed, reversing a state court that had called it abusive, but that ruling does not settle the repetitive question.

Older doctrine pulls the other way on timing. Súmula 543 (2015) orders immediate refund when a contract under the consumer code is resolved, in full if the seller is at fault and in part if the buyer is. The distrato law gives a later date. A related October 2026 STJ notice shows the panels still divided on lots and on pre-2018 contracts: for those older contracts, the Third Panel accepts 10% to 25% case by case and the Fourth Panel starts from 25% (Tema 1465). For lots, Law 6.766/1979 art. 32-A has its own 10% limit on the contract value, and the panels disagree on whether it beats the consumer code (Tema 1464).

Taxes inside the price

The taxes on the sale itself fall on the developer. They can still reach you through the price, so it helps to know where they stand during a long build.

Today, a ring-fenced project may pay the special regime's 4% of monthly receipts. Complementary Law 214/2025, the consumption tax reform, changes the picture for sales in the coming years:

• Sales from an incorporação are a taxable operation for IBS and CBS (art. 252).
• Property sales pay 50% of the standard rate under art. 261.
• A new home gets a deduction of R$ 100,000 from the tax base, and a residential lot gets R$ 30,000, once per property and adjusted monthly by the IPCA (art. 259).
• Projects with a valid option for the special regime or patrimônio de afetação made before 1 January 2029 may stay on a transition regime that pays CBS (art. 485).

Commentators note that much of this depends on later regulation. These article numbers come from published commentary on the law, so check them against the consolidated text. For a buyer, the practical check is contractual: does any clause let the developer add tax changes to the price? If the deal is signed now and delivers after 2027, ask that question in writing.

Your own taxes come at the end. Closing costs covers ITBI, notary and registry fees by city, and Brazil property taxes covers the yearly and capital gains side.

Paying and reselling from abroad

Off-plan runs for years, so a buyer abroad deals with Brazil many times. Each payment is a separate international transfer unless you hold money in a Brazilian account. Keep each FX contract with the matching installment, since these records support your later tax position when you sell. Selling as a foreigner explains why the paper trail matters.

Signature stages also come up more than once: the promise, amendments, the deed and any bank loan. A power of attorney limited to the deed will not cover an amendment during the works, so draft it for the full path.

Plan the balance early. If you plan to borrow at delivery, check whether a bank will lend to you before you sign, since the balance is due on the contract date whether or not a loan comes through. Financing options compares the routes.

Selling before delivery

You can often sell your contract position before the building is finished. This is a cessão de direitos, an assignment of your rights. Check whether the developer charges a fee and how it approves the new buyer. Art. 67-A, §9 helps here only where the assignment replaces a cancelation. If you list your position, for example on the free sale page, say clearly that it is an assignment and that no deed has been issued.

Delivery, habite-se and the deed

The city issues the habite-se when the building passes inspection. The developer must then record the construction at the registry, split among the units (art. 44). It is liable for losses caused by delay in that step. If both developer and builder fail to do it, any buyer may ask for it (art. 44, §2). Until this is done, your unit has no individual matrícula, and neither a deed nor a bank mortgage can attach to it properly.

Item IX of the quadro-resumo sets how long you have to pay off after the habite-se. Check that date against the bank's timeline if you are borrowing.

Inspect before you sign the delivery form. Compare the unit with the written specification in the memorial, and list defects in writing. From delivery, condominium fees and IPTU usually run to you, and condominium fees explains how to read the first accounts.

Then the ordinary end of a purchase follows: a public deed, ITBI, and filing at the registry. The registrar has 10 business days from filing to register or object in writing, and 5 days for a simple deed of sale that draws no objection (art. 188 of the Public Registries Law). Ownership moves only when that entry is made. Posse and escritura explains why the keys alone do not make you the owner. Ready-built homes for comparison are on the for-sale page.

Questions

Sources

1. Planalto, Law 4.591/1964, condominiums and incorporação, consolidated text
2. Planalto, Law 13.786/2018, the distrato law
3. Planalto, Law 10.931/2004, special tax regime and art. 46 on monthly adjustment
4. Planalto, Law 6.015/1973, Public Registries Law, art. 188
5. STJ, notice on Temas 1464 and 1465, retention limits, 8 October 2026
6. TJMG, repetitive appeal record for STJ Tema 1466
7. Schaan Advocacia, scope of the stay in Tema 1466, 2026
8. Registro de Imóveis do Brasil, report on 50% retention with patrimônio de afetação, July 2026
9. STJ, Súmula 543 record
10. Teses e Súmulas, STJ Tema 938 on commission and SATI
11. Teses e Súmulas, STJ Tema 970 on penalties and lost rent
12. Teses e Súmulas, STJ Tema 971 on reversing the penalty clause
13. Teses e Súmulas, STJ Tema 996 on late delivery in Minha Casa, Minha Vida
14. AASP, Third Panel on Súmula 308 and fiduciary sale, REsp 1.576.164, 2019
15. IRIB, Fourth Panel on Súmula 308 and fiduciary sale, REsp 2.130.141
16. Dizer o Direito, EREsp 670.117 on juros no pé, 2012
17. Conjur, São Paulo first-instance judgment on monthly INCC under 36 months, 2023
18. Dados de Mercado, INCC-M series from FGV
19. Colégio Notarial SP, Marcos Pires on IBS and CBS on property, October 2025
20. Colégio Notarial SP, Rosa Freitas on property under LC 214/2025, April 2025