If you bought into an SPE and received a notice requesting an additional capital contribution beyond what was originally planned, you are facing a capital call.
Your options are limited. What you decide in the next few days determines how much you will lose — or whether you can exit without losing more.
This guide explains what a capital call is, why it happens, and what to do when it arrives.
What is a capital call
In a real estate SPE (Sociedade de Propósito Específico — a special purpose company), property buyers are shareholders in a company created to build a development. The initial budget sets how much the construction will cost and how much each shareholder will pay in total.
A capital call occurs when the actual cost of construction exceeds the budgeted amount — and the company (SPE) needs more money to continue.
Since shareholders own the company, they are responsible for contributing this additional capital. There is no “other party” to charge — the obligation falls on the owners.
A capital call is the concrete manifestation of the main risk in SPE: the price is not fixed.
Why it happens
The most common causes of capital calls in real estate SPEs:
Construction material price increases: the budget is prepared before work begins. Between the forecast and execution, prices for cement, steel, lumber, and other materials can rise significantly. Construction sector inflation (INCC) may exceed projections.
Labor cost increases: collective bargaining adjustments, high workforce turnover, need for overtime to recover schedule delays.
Construction surprises: soil problems, need for structural reinforcement, design incompatibilities requiring expensive adaptations.
Budget errors: the initial budget underestimated costs. This may result from bad faith, technical incompetence, or simply because budgeting construction is difficult and error margins exist in any project.
Poor financial management: diversion of funds, payment of other liabilities using SPE cash, lack of construction oversight.
The shareholder receives a capital call notice — generally a formal notification with a payment deadline — without necessarily knowing the exact cause of the increase.
What SPE acquisition contracts usually say
Most contracts for acquiring SPE shares provide for capital calls in some form. Clauses vary, but typically establish:
- The shareholder is obligated to respond to capital calls to cover construction costs
- Payment deadline (usually 15 to 30 days after notification)
- Consequences of non-payment: share dilution, penalty, or loss of rights
Read with special attention: some clauses set a maximum limit on calls (for example, no more than 20% of total value). Others have no limit. The absence of a limit is the worst-case scenario.
Your options when a capital call arrives
Option 1: Contribute the capital
If you have liquidity and the additional amount is reasonable relative to what you have already invested, contributing may be the simplest option. The property continues to be built, you maintain your percentage stake, and construction advances.
Evaluate before contributing:
– What caused the increase? Request a detailed report
– Is there a forecast of additional calls? Was the cause one-time or does it suggest a structural management problem?
– Does the new total cost still make sense as an investment?
– Is there independent auditing of the SPE accounts?
If you cannot get clear answers to these questions, the risk of contributing and receiving another call in the next few months is real.
Option 2: Accept share dilution
If your contract provides for dilution as an alternative to capital contribution, you can choose not to pay and accept that your percentage stake in the SPE decreases. Shareholders who paid the call retain a larger share; you retain a smaller one.
Dilution means that when construction is complete, you have rights to less than you expected — or your specific unit may be renegotiated.
When dilution may make sense:
– If the capital contribution amount is too high relative to the expected return
– If you suspect there will be more calls and do not want continued exposure
– If you plan to sell your share before delivery anyway
Option 3: Sell your share
If you do not want to contribute and will not accept dilution, you can try to sell your share to another buyer.
Here is the problem: you are selling under urgency, with an open capital call (the buyer will inherit this obligation), and the market for SPE shares is structurally narrow. These three conditions together mean you will likely sell at a significant discount relative to what you invested.
Transfer of SPE shares involves amendment of corporate bylaws, consent of other shareholders (depending on contract terms), and notarization. It is a more bureaucratic and costly process than a transfer of conventional purchase rights.
Option 4: Challenge it in court
If you believe the capital call is improper — due to mismanagement, diversion of funds, or lack of contractual basis for the increase — you can file a lawsuit.
This is the most expensive and time-consuming option. It requires a lawyer specializing in corporate and real estate law, detailed SPE documentation, and the awareness that the process may take years while construction continues (or stops).
How to avoid being in this position
The capital call is an inherent risk in the SPE structure — not a flaw of a specific SPE. The only way to eliminate this risk is to not buy into an SPE.
In conventional real estate development, the price is fixed in the contract. If construction costs rise, the problem belongs to the developer — not the buyer. The buyer pays what they signed and receives what was promised in the registered descriptive memorandum.
If you are considering buying off-plan and want to know whether the product being presented is conventional development or SPE — and what this means for your investment risk — verify the existence of the Registro de Incorporação before signing any documents.
Frequently asked questions
Can I refuse to pay the capital call?
It depends on what the contract says. If the contract requires capital contribution, refusal may have consequences: dilution, penalty, exclusion from the SPE. Read the specific clauses before deciding.
Is there a limit to capital calls?
Only if the contract establishes one. Well-structured SPE contracts (from the buyer’s perspective) should have a percentage limit on calls. Contracts without a limit expose the shareholder to unlimited contributions.
How much time do I have to respond?
The deadline is in the contract and in the notice. Usually 15 to 30 days. Do not ignore it — non-payment by the deadline typically triggers contract penalties automatically.
Can I request an audit of the SPE accounts before paying?
You have the right to request access to SPE accounts as an owner. The administrator is required to provide an accounting statement. If they refuse, this is grounds for legal action. In practice, request formally in writing with a dated receipt.
What happens to a capital call if I sell my share?
An open capital call follows the share. Whoever buys your share inherits the obligation. This reduces the price you can obtain in the sale.
Already in an SPE with a capital call?
If you have received a capital call and are evaluating your options, the first thing to do is carefully read the share purchase contract — specifically the clauses on calls, deadline, consequences of non-payment, and exit mechanisms.
The second is to understand the cause. Request a formal report from the SPE administrator.
The third — if the situation is complex — is to seek guidance from a lawyer specializing in real estate and corporate law.
If you are still evaluating whether to buy off-plan and want to understand the risks before signing, speak with an agent from Regente. Guidance is free.
Guide produced by the Regente Imóveis team. Information based on the Brazilian Civil Code (articles of association of a limited liability company), the practice of the Florianópolis real estate market, and 27 years of experience in new development and intermediation. This guide is educational in nature — each situation has specific characteristics that should be evaluated with specialized assistance.
