SPE Imobiliária — What It Is, How It Works, and What Risks It Poses for the Buyer

When someone offers a property “at cost price,” the right question is not how much it costs. It is: what exactly are you buying?

If the answer is “a stake in a company” — not a real estate unit with a purchase and sale contract — everything that follows in this guide applies to your situation.

This guide addresses specifically the purchase of SPE stakes (the so-called “cost price”), not developments where the developer is structurally an SPE but sells units with Registration of Incorporation. This distinction is fundamental and detailed below.

SPE as an incorporation vehicle vs. SPE of stakes — the distinction the market does not explain

First, it is necessary to clear up a frequent confusion: SPE is an acronym for Sociedade de Propósito Específico (Special Purpose Entity) — a type of legal entity, not a purchase model.

In the real estate market, SPE appears in two completely distinct forms:

SPE of incorporation (legitimate): the developer creates an SPE to be the legal vehicle for the development. This SPE carries out conventional incorporation: registers the Registration of Incorporation (RI) at the notary, averbs Fiduciary Fund Protection (Patrimônio de Afetação), and sells units with purchase and sale contracts. The buyer signs a purchase and sale contract for a specific unit — not a corporate contract. For the buyer, this model is equivalent to buying from a conventional developer. In some respects it is safer, because the development’s assets are already segregated from the parent company from the start.

SPE of stakes (“cost price” / “workaround”): here the buyer does not purchase a real estate unit. They purchase stakes in the company that will build the development. The promise is that these stakes will be converted into units at the end of construction. There is no RI registered, because there is no incorporation — there is a company building. The buyer becomes a partner in the company constructing. This second model is what this guide addresses.

The criterion that separates the two:

The question that settles any doubt: “What am I signing — a purchase and sale contract for a unit or a stake acquisition contract?” If it is a stake, everything that follows in this guide applies to your situation.

What it means to buy at “cost price” — and why the name conceals the model

“Cost price” is the most common commercial name for SPE-based purchases. The marketing logic is simple: the buyer pays only the construction cost, without the developer’s profit margin. It seems like an advantage.

What the name does not say is what changes structurally when you enter this model:

• You are not a buyer of a property. You are a partner in a company created to build that property.
• You do not have a purchase and sale contract with a developer. You have a participation stake in an SPE.
• The price is not fixed. The final cost depends on what the construction will cost — and you divide that cost with the other stakeholders.

The SPE — Sociedade de Propósito Específico (Special Purpose Entity) — is a legal entity created exclusively to execute that construction. The “buyers” are, in reality, stakeholders in this company. The builder or developer managing the construction is not selling a property: they are providing administration services to the SPE, of which you are a partner.

You are not a buyer: what changes when you become a partner in a construction

This distinction is not a legal formality. It changes everything in practice.

In conventional incorporation, you have a contract with the developer. They assume responsibility for delivering the property in the promised specifications, on the agreed timeline, at the fixed price. You are a creditor of the company. If they default, you have contractual basis to pursue recovery.

In an SPE, you are a partner in the company that builds. There is no “other party” to pursue — you are part of the company. If the construction has a problem, you are inside the problem, not outside it.

Practical consequences of this difference:

You cannot sue the builder through the same channels. If the SPE administrator executed the construction poorly, suing the administrator means entering a dispute with someone who manages a company of which you are a partner. The legal complexity is much greater than an action against a developer.

The specification sheet can be altered. In an incorporation, the specification sheet registered at the notary binds the builder to what will be delivered. In an SPE, the specification sheet can be altered by vote of the stakeholders. If other investors vote to reduce specifications — change the planned finish, use inferior materials in common areas — and the majority approves, you may receive something different from what you expected, without this constituting formal non-performance.

Liability for construction liabilities. As a partner, you can be called to answer for liabilities generated during construction — workplace accidents, unpaid labor charges, supplier debts. In conventional incorporation, this risk belongs to the developer, not the buyer.

Liability for workplace accidents and labor charges during construction

This is the most underestimated SPE risk and the least discussed in commercial presentations.

A construction involves labor, suppliers, equipment, and materials. During construction, labor liabilities can arise (unpaid workers, accidents), tax liabilities (uncollected taxes), and commercial liabilities (unpaid suppliers).

In conventional incorporation: these liabilities belong to the developer. The buyer has no connection to them.

In an SPE: the stakeholder is a partner in the company that hires and pays. Depending on how the SPE was structured and what occurs, stakeholders may be held jointly and severally liable for liabilities generated by construction management. This does not happen in all cases — but it is a real risk that most SPE contracts do not mention clearly.

You cannot list, finance, nor use FGTS

Three practical limitations that many buyers discover too late:

FGTS: FGTS can only be used in the purchase of properties — not in the acquisition of SPE stakes. Since what you acquire is a participation interest in a company, not a property, FGTS is not applicable during the construction phase. This eliminates a relevant source of capital for many buyers.

Bank financing: Banks finance properties with individualized property registration records. During the SPE phase, no such registration exists — only a participation interest in a company. Conventional real estate credit approval is not possible in this phase. This means the buyer needs to have their own capital to cover the construction installments in full.

Listing and resale during construction: If you want to exit the deal before delivery, you are not selling a property — you are selling a company stake. The market for this is limited, buyers are scarce, and the transaction is more legally complex. The liquidity of an SPE stake during construction is much lower than that of a conventional incorporation contract.

The delay in registration and what it means in practice

When the SPE construction finishes, the process to transform the stake into a property with its own registration record is longer and more expensive than in conventional incorporation.

In incorporation, the individualization of registration records is a relatively straightforward process — the developer registered the specification sheet and, at the end, the units are individually registered.

In an SPE, it is necessary to:
1. Register the property in the name of the SPE (the company as owner)
2. Transfer ownership of each unit to each stakeholder
3. Pay ITBI on that transfer (which may not be necessary in incorporation, depending on structure)
4. Individualize the registration records

This process can take months after keys are delivered. In the meantime:

• You do not have a registration record to offer the bank as security for financing
• You cannot list the property for sale with all documentation in order
• You do not have the definitive ownership document

For the investor planning to sell shortly after delivery or refinance to recover capital, the delay in registration can compromise months of returns.

The market for SPE stake resale is illiquid by definition

If you need to exit the SPE before delivery, the exit is a cession of stakes — not a cession of rights to property (as in incorporation).

This means:

• Fewer willing buyers. Whoever buys an SPE stake assumes all the risks described above, including future capital calls. The universe of interested buyers is smaller.
• Depressed price. With fewer interested parties, bargaining power rests with the buyer. Cessions of SPE stakes are typically made at a discount to what was invested.
• More complex process. The cession of stakes involves altering the SPE’s bylaws, consent of other stakeholders, and notary registration — more bureaucracy and more cost than the cession of rights in an incorporation.

In conventional incorporation, the cession of rights is simpler and the buyer market is broader. Liquidity — the ability to exit the investment — is structurally greater.

Capital calls — the risk nobody presents in the sales pitch

In an SPE, the final construction cost is shared among stakeholders. If the initial budget is insufficient — due to material cost increases, labor cost increases, construction surprises, or planning errors — stakeholders are called to contribute additional capital.

This call is named capital call. It can happen one or many times during construction.

The stakeholder who lacks liquidity to respond to the call faces a dilemma:

• Contribute the capital even without prior planning for it
• Be diluted (your percentage stake in the SPE falls, other stakeholders who contribute more get a larger share)
• Sell the stake in a hurry, frequently below invested value

In conventional incorporation, the price is fixed in the contract. If construction costs rise, the problem is the developer’s — not the buyer’s. In an SPE, the buyer shares that risk directly.

The listing of SPE as property is misleading — and can constitute a crime

This is the least discussed risk and the most visible to those already familiar with the structure: when an SPE is listed as “apartment for sale” or “off-plan property,” what is being offered is not a property — it is a company stake.

Property has a registration record at the notary, can be financed, can be the subject of FGTS, and is protected by the Consumer Protection Code as consumer goods. Company stake is a participation interest, governed by the Civil Code and corporate legislation. They are legally distinct things.

Listing a stake as property — using terms such as “for sale,” “m² from R$ X,000,” “apartment off-plan,” “delivery on [date]” — can constitute three simultaneous violations:

Misleading advertising (Consumer Protection Code, Art. 37): all advertising containing information capable of misleading the consumer as to the nature of the product is prohibited. Advertising a company stake as property meets this criterion.

Crime against the popular economy (Law 1.521/1951): the law criminalizes commercial practices involving fraud or false information in consumer relations and economic transactions. Advertising that presents SPE stakes as property can characterize criminal liability for those who advertise and those who intermediate. Penalty: detention of 2 to 10 years.

Violation of the Incorporations Law (Law 4.591/1964, Arts. 65 and 66): it is expressly forbidden to advertise real estate incorporation without the Registration of Incorporation registered at the notary. Since the SPE has no RI — and cannot have one, because it is not an incorporation — any advertising presenting it as “real estate launch” violates this provision. The agent and the real estate agency that broadcast this advertising can also be held liable.

The buyer who felt misled by the advertising can file a complaint with the consumer protection agency, file a police report, and pursue civil action. Liability can reach the developer, the SPE administrator, the agent, and the real estate agency that intermediated.

Why Regente Imóveis does not commercialize SPE or cost price

Regente Imóveis has 27 years of experience intermediating real estate launches in Florianópolis. In that period, we have never intermediated a property from a builder that failed — and we have adopted a clear policy of not commercializing the SPE stake-sale model nor products sold as “cost price.”

To avoid ambiguity: Regente works with conventional incorporations with RI registered at the notary. Several of the developments we intermediate were structured with the developer being an SPE — this is common and healthy, as long as the sale is of units with purchase and sale contracts, with RI and Fiduciary Fund Protection. What we do not commercialize is the model in which the buyer acquires company stakes instead of units.

The reason is not ideological. It is practical:

The set of risks in buying SPE stakes — unpredictable capital calls, illiquidity of stakes, inability to use FGTS and financing, liability for construction liabilities, alterable specification sheet, delay in registration — creates a series of situations where the client can be harmed by reasons outside the real estate agency’s control and that are not always understood at the time of purchase.

Our business model depends on long-term customer satisfaction. Selling SPE stakes can result in short-term commission — and in a dissatisfied, harmed, or litigation-bound client in the medium term. It makes no sense for either party.

When we evaluate launches to present to clients, the first screening criterion is: does a Registration of Incorporation exist registered at the notary, and is the buyer acquiring a unit with a purchase and sale contract? If not, we do not proceed with the analysis.

SPE vs. conventional incorporation — direct comparison

Frequently Asked Questions about SPE real estate

Is an SPE with Fiduciary Fund Protection safer?

The SPE and Fiduciary Fund Protection (Patrimônio de Afetação) are related but distinct concepts. A conventional incorporation can have Fiduciary Fund Protection — and this is the most effective protection for the buyer in case of bankruptcy. An SPE may or may not have Fiduciary Fund Protection. The mere existence of an SPE does not equate to Fiduciary Fund Protection. Verify separately.

Can I finance the SPE property after delivery?

Yes — after individualization of the registration record in your name, it is possible to pursue conventional bank financing. The problem is the interval between delivery of keys and completion of registration, which can last months and prevents access to credit in that period.

How do I know if a product is SPE or conventional incorporation?

Ask directly: “Is the development conventional incorporation or SPE?” Ask for the number of the Registration of Incorporation at the notary. If there is no RI — only SPE bylaws — it is because it is an SPE. If there is RI registered with specification sheet and, ideally, Fiduciary Fund Protection term registered, it is conventional incorporation.

Does cost price really come out cheaper?

On paper, yes — you do not pay the developer’s profit margin. In practice, there are: SPE administration fees, additional costs of registration and transfer, risk of unforeseen capital calls, and possible need to sell the stake at a discount. The total cost may be higher than in an incorporation, depending on what happens during construction.

Before signing any product at “cost price”

If you received a proposal to purchase under the SPE regime or cost price, before signing verify:

• [ ] Is the product SPE or incorporation? Request written confirmation
• [ ] Does a Registration of Incorporation exist at the notary?
• [ ] Is there a Fiduciary Fund Protection term registered on the property record?
• [ ] Does the contract provide a mechanism for capital calls? With what limit?
• [ ] What is the process and estimated cost of registration after delivery?
• [ ] Is there a clause allowing alteration of the specification sheet by vote of stakeholders?
• [ ] How does exit before delivery work (cession of stakes)?

If you have doubt about any item above, or if the seller cannot answer clearly, this is a signal to pause before signing.

Prefer an incorporation with verifiable track record?

Regente works exclusively with conventional incorporations from builders with documented delivery track record. If you are evaluating launches in Florianópolis and want to understand the difference between products available in the market, speak with our team.

In 27 years, we have never intermediated a property from a builder that failed. This track record is not accident — it is screening criterion.

Guide produced by the Regente Imóveis team based on 27 years of experience in the Florianópolis real estate market. Legal information based on Law 4.591/1964, Law 10.931/2004 (Fiduciary Fund Protection), Law 13.786/2018, and Civil Code. This guide is educational and informative in nature — each transaction has specific characteristics that must be evaluated with specialized assistance.