Rescission of Off-Plan Property: What Law 13.786 Guarantees

You signed a purchase agreement for an off-plan property and now need to exit the contract. Perhaps your income changed, perhaps the project no longer makes sense, perhaps you only realized you entered something major without understanding the rules. The first reaction of most buyers is to call the builder and ask how much money comes back. And it is in that phone call that the imbalance appears.

The builder understands Law 13.786/2018 better than you do. They know what they can retain, what they can deduct, and what they can simply not mention. The rescission document they present tends to reflect the best scenario for them, not the limits that the law and courts impose in favor of the buyer.

This guide shows what Law 13.786 guarantees to the buyer, what typically gets left out of the conversation, and why signing the proposed rescission without review can cost you dearly. This content does not replace legal advice. Because it involves large amounts and rules in dispute in courts, the recommendation is to consult a real estate attorney specialized in property law before any signature.

The Problem: You Want Out and the Calculation Falls to the Builder

When the buyer decides to withdraw, the builder performs the calculation. They set the retention percentage, add the real estate consulting fee, tack on charges, and present the balance to return. The number arrives ready-made.

The problem is that each of these deductions has a legal ceiling, and some depend on conditions that must be verified. Without knowing this, the buyer accepts a calculation that may exceed what the law allows.

Law 13.786/2018 regulated the property rescission and applies to contracts signed as of December 27, 2018 (Câmara dos Deputados (2018)). It permits rescission at any time before delivery, but the financial consequences depend on the type of contract and the timing of withdrawal.

There is a detail few buyers know. If the purchase was made outside the sales office, you have 7 calendar days to withdraw with no penalty, with full reimbursement, simply by sending a registered letter with acknowledgment of receipt (Lei 13.786/2018, Art. 67-A, § 10 (2018)). The deadline is short and is rarely remembered by the seller.

How Much You Lose in the Rescission

This is the point of greatest financial impact, and the most distorted in initial conversations.

The base rule of Law 13.786 separates two scenarios:

• Without Fiduciary Fund Protection: retention of up to 25% of amounts paid, plus full real estate consulting fee.
• With Fiduciary Fund Protection (Patrimônio de Afetação): retention of up to 50% of amounts paid.

In the scenario without Fiduciary Fund Protection, this means you get back, at minimum, 75% of what you paid, already deducting the consulting commission (Lei 13.786/2018, Art. 67-A (2018)).

The literal text of Art. 67-A, II provides that the penalty “may not exceed 25% (twenty-five percent) of the amount paid”. The exact text of the paragraphs will be confirmed at Planalto before final publication.

What Else Goes Into the Calculation Beyond the Penalty

The retention percentage is not the only deduction. The law authorizes deducting, cumulatively, the full amount of the real estate consulting commission, even if you paid it separately or embedded in the price (Lei 13.786/2018, Art. 67-A, I (2018)). This commission typically falls in the range of 5% to 8% of the property value, a percentage to be confirmed case by case in the contract.

When you add the commission to the retention percentage, the actual loss becomes greater than what the penalty number suggests. In a case reviewed by the Superior Court of Justice in December 2025, the sum of 50% retention in Fiduciary Fund Protection plus consulting resulted in a loss close to 60% of total paid (ConJur (2025)).

Occupation Fee: You Probably Should Not Pay

The occupation fee is retroactive rent charged against anyone who occupied the property before rescission. It only applies if you actually received the keys.

Whoever purchased off-plan, is in the construction phase, and never occupied the property should not pay an occupation fee. The Superior Court of Justice confirmed this understanding in October 2025, including for unbuilt land (Lei 13.786/2018, Art. 67-A, § 3º (2018)). The applicable percentage when there is occupation (0.5% or 0.75% per month on the updated value) will be confirmed, because sources diverge and the literal text of the paragraph must be verified.

How Long Until You Get Your Money Back

The refund timeline depends on the property regime, and it is one of the points the builder typically presents vaguely.

In the regime without Fiduciary Fund Protection, the law provides 180 calendar days (not business days) counted from the date the rescission is signed (Lei 13.786/2018, Art. 67-A, § 6º (2018)). The count begins from the rescission, not from the date you begin claiming. This is why formalizing the request in writing early matters.

In the regime with Fiduciary Fund Protection, the deadline is 30 days after the issuance of the certificate of occupancy (habite-se). If construction is still underway, this can take years (Lei 13.786/2018, Art. 67-A, § 5º (2018)).

In both cases, if the builder resells the property before the deadline, the refund must happen within 30 days of the resale (Lei 13.786/2018, Art. 67-A, § 7º (2018)). Recent Superior Court of Justice decisions indicate that, when the Consumer Protection Code applies, the refund must be immediate.

If Construction Was Delayed: You Can Exit With No Penalty

There is a scenario where the buyer exits without losing anything, and it depends on the builder’s fault.

Law 13.786 grants the builder a grace period of 180 calendar days beyond the delivery date stated in the contract. Within that period, the delay does not give the right to rescission without penalty (Lei 13.786/2018, Art. 43-A (2018)).

Once the grace period is exceeded, without you having caused the delay, two options emerge:

• Exit the contract: refund of 100% of amounts paid, adjusted by INCC, plus a penalty of 1% of the amount paid per month of delay, calculated pro rata die.
• Stay in the contract: receive the 1% monthly penalty for the delay period and continue through delivery.

The 1% penalty applies to the total amount actually paid, which includes what was paid via financing, not just installments paid directly to the builder. Some builders try to restrict the calculation base, but prevailing case law considers the total. The exact scope of the base will be confirmed through legal evaluation of the contract.

To enforce this right, keep everything: the contract with the delivery date, receipts and statements of what was paid, and records of the construction status at the deadline.

What the Superior Court of Justice Decides and Why There Is Uncertainty Now

This is the point the builder has no interest in mentioning, and what weighs most heavily on your final calculation.

In September 2025, the 3rd Panel of the Superior Court of Justice ruled that the Consumer Protection Code prevails over Law 13.786 in consumer relations (REsp 2.106.548, Justice Nancy Andrighi). In practice, the total retention, adding penalty, real estate consulting, administrative expenses, and taxes, is capped at 25%, even in properties with Fiduciary Fund Protection (ConJur (2025)).

This decision also treated as void the clauses for total loss of installments and pointed toward immediate refund, rather than postponed to the certificate of occupancy.

There is, however, an important caveat. The 4th Panel of the Superior Court of Justice maintains the understanding that 50% retention in Fiduciary Fund Protection is valid, and the divergence was taken to the 2nd Section via motions for consolidation (ConJur (2025)). While the 2nd Section has not ruled, there is legal uncertainty in the open: the thesis of a 25% ceiling even with Fiduciary Fund Protection favors the buyer, but is not yet settled.

What this means for you: if the builder proposes retaining 50% based on Fiduciary Fund Protection, there is current legal ground to question that percentage. The strategy depends on your case and requires evaluation by a real estate attorney.

Before Signing: What the Builder Typically Omits

It is worth reviewing the most common blind spots before you sign the rescission:

• Fiduciary Fund Protection only allows 50% if registered in the property record. Request an updated certificate of the property from the Land Registry Office. If Fiduciary Fund Protection is not registered, the maximum retention reverts to 25%.
• The real estate consulting fee is deducted from the amount to be refunded, even if already paid. Demand the detailed calculation in writing.
• The rescission is not mandatory to accept. The document has the force of an agreement. Signing an unfavorable rescission can mean waiving rights.
• The 180-day deadline runs from the rescission. Formalize the request early and keep the mailing receipt.
• The Superior Court of Justice decision from September 2025 may reduce 50% retention to 25%, but the issue remains under divergence. Do not treat it as definitive nor dismiss it as impossible.

An Alternative to Rescission: The Assignment

Before accepting loss of 25% or more, consider the assignment, also called assignment of rights.

In an assignment, instead of returning the property to the builder, you transfer the contract to another person, who assumes the remaining obligations. You do not lose the amounts paid. Depending on property appreciation, you might even charge a premium from the new buyer.

The practical difference: the assignment requires finding an interested buyer and obtaining the builder’s approval, which may request credit analysis of the new buyer and an administrative fee. This fee must be fixed and reasonable. Charges proportional to the property value have been struck down in court as abusive.

For someone who already paid a good portion of the contract and is in a property that has appreciated, the assignment tends to be far less costly than rescission. For someone who purchased recently, in a flat market, rescission may be the faster path. The choice depends on the numbers in your case.

Frequently Asked Questions

Can I withdraw from an off-plan property after signing the contract?

Yes. Law 13.786/2018 guarantees the right to rescind the contract at any time before delivery, but the financial consequences depend on when you withdraw and the type of contract. If the purchase was made outside the sales office, you still have 7 calendar days to withdraw with no penalty, simply by sending a registered letter with acknowledgment of receipt. After that period, the law’s retention rules apply. Before signing any rescission document proposed by the builder, consult a real estate attorney specialized in property law.

How much will I lose if I ask for a rescission?

The law limits retention to up to 25% of amounts paid, plus the real estate consulting commission, when the development is not under Fiduciary Fund Protection (Patrimônio de Afetação). With Fiduciary Fund Protection, the limit rises to up to 50%. At worst without Fiduciary Fund Protection, you receive back at least 75% of what you paid, less the consulting fee. In 2025, the 3rd Panel of the Superior Court of Justice ruled that, in consumer relations, the Consumer Protection Code may limit total retention to 25% even in properties with Fiduciary Fund Protection. This point is still being settled in courts. The amount refunded is adjusted by the index in the contract, normally INCC during construction.

How long until I get my money back?

It depends on the property regime. Without Fiduciary Fund Protection, the law provides for refund within up to 180 calendar days counted from the rescission date. With Fiduciary Fund Protection, the deadline is 30 days after issuance of the certificate of occupancy (habite-se), which can take years if construction is still underway. In both cases, if the builder resells the property before these deadlines, the refund must happen within 30 days of resale. Recent Superior Court of Justice decisions indicate that, when the Consumer Protection Code applies, the refund must be immediate. Document the request in writing and keep the mailing receipt.

If construction was delayed more than 6 months, can I exit with no penalty?

Yes. Law 13.786/2018 grants the builder a grace period of 180 calendar days beyond the delivery date stated in the contract. If this period is exceeded without you having caused the delay, you can rescind the contract and demand refund of 100% of amounts paid, with no penalty to you, adjusted by INCC. In addition, the builder must pay a penalty of 1% of total paid per month of delay, calculated pro rata die. Another option is to stay in the contract and receive only the monthly penalty. Keep photos, records of construction, and communications with the builder to document the delay.

Can the builder retain 50% of what I paid?

It can, if the development is regularly registered under Fiduciary Fund Protection and the contract expressly provides this condition. But there are two points to watch. First, Fiduciary Fund Protection must be registered in the property record. If not, the limit reverts to 25%. Second, in September 2025 the 3rd Panel of the Superior Court of Justice held that the Consumer Protection Code limits total retention to 25%, even with Fiduciary Fund Protection. This issue remains in divergence at the 2nd Section of the Superior Court of Justice, creating temporary legal uncertainty. Facing a proposal for 50% retention, consult a real estate attorney to evaluate whether there is ground to challenge the percentage.

Can the builder discount the real estate consulting commission in the rescission?

Yes. Law 13.786/2018 authorizes deduction of the full amount of the real estate consulting commission from the amounts to be refunded, regardless of whether you paid it separately or embedded in the price. This is a point that typically is not explained clearly: beyond the penalty percentage, the consulting fee is still deducted, which normally falls in the range of 5% to 8% of the property value. The actual loss may be greater than the retention percentage suggests. Always demand the detailed calculation in writing before signing.

Is the rescission agreement proposed by the builder mandatory to accept?

No. The rescission agreement is a document with the force of an accord. By signing, you accept the proposed conditions, even if they are worse than what the law guarantees. You have the right to negotiate terms or refuse and seek rescission through the courts. Some builders propose refunds in long installments, discounts above the permitted amount, or clauses waiving compensation claims. Read every clause carefully. If in doubt, do not sign before consulting a real estate attorney specialized in property law. The rescission does not need to be signed the same day it is presented.

Does the Rescission Law apply to contracts signed before 2019?

Not directly. Law 13.786/2018 took effect December 27, 2018 and does not apply retroactively to earlier contracts. For contracts signed before that date, earlier rules apply, including Superior Court of Justice holdings that generally determined refund of 75% to 90% of amounts paid, without the extended waiting periods of the current law. If your contract predates December 2018, the rescission terms may be more favorable. Evaluate with an attorney.

Conclusion: Do Not Sign Blind

Property rescission has clear rules in some respects and disputed ones in others. What Law 13.786 guarantees (ceiling on retention, 100% refund if construction delays past grace period, 7-day withdrawal window for off-premises purchases) protects only those who know these rights before signing.

The calculation presented by the builder reflects their interest. Verifying whether Fiduciary Fund Protection is registered, demanding the detailed calculation in writing, checking deadlines, and evaluating assignment as an alternative can mean tens of thousands of dollars more in your pocket.

Because the case involves large amounts, cumulative deductions, and evolving case law, the decision should not be made based on the ready-made document that arrives. Before signing any rescission, seek legal guidance specialized in real estate law.

If you are in this situation and want to understand your rights before deciding, contact our team via the legal guidance form. We help organize your case and direct you to appropriate support.