Condominium and IPTU must be paid from the release of the keys

A decision by the STJ (Superior Court of Justice) in early April reiterated the responsibility of the property buyer to bear the condominium fee since the release of the keys by the seller.

By denying a special appeal filed by buyers of three properties in the same condominium, who chose not to take possession while awaiting the decision of a seizure action, the 3rd class of the STJ stated that condominium expenses are the owner’s obligations when the property is transferred to your name and the keys are at your disposal.

In the case in question, while consumers awaited the outcome of the other lawsuit, the construction company placed keys to the apartments at their disposal in Juízo, exempting itself from paying the fees.

The rapporteur, Minister Ricardo Villas Bôas Cueva, stated that “there is no basis for holding the construction company responsible for condominium fees if its obligation to deliver the keys was duly fulfilled”.

The unanimous decision of the STJ makes it clear that it is the material relationship with the property, characterized by the imposition of possession, which defines the moment when the buyer becomes responsible for the fees. Thus, the refusal to receive the keys does not relieve the buyer of this responsibility.

“When the consumer deliberately rolls over to pay, he is notified to take possession, because everything is ok with the property, documentation and financing and he does not want to simply take possession, because he is living in another place and he already has the idea of not assuming the costs of the property at that moment. From this notification, it is up to him to pay”, says Diego Amaral, deputy secretary of the Special Commission on Real Estate Law of the Federal Council of the OAB.

Keeping an eye on the contract

The delivery of keys as the starting point for the payment of the condominium is an old understanding in several judicial spheres, but there are construction companies that start charging from the signing of the purchase and sale agreement or the first condominium meeting.

Experts in real estate law say that the buyer should be aware of unfair terms.

According to lawyer Marcelo Tapai, companies take advantage of the consumer’s lack of knowledge to charge condominium fees and IPTU long before the keys are handed over. “It’s the famous glue, glue”, he says.

The ABMH (Brazilian Association of Housing Borrowers) guides every consumer who has paid the condominium and IPTU before handing over the keys to claim the return of this amount with the construction company or in court.

As it is an undue charge, the owner can also request a double return of the amount paid in excess, in addition to interest and monetary correction, under the umbrella of the Consumer Protection Code.

In the event that the construction company has not respected the deadline for handing over the keys, nothing changes. The payment of condominium and IPTU is the responsibility of the company until the buyer can use the property.

According to lawyer Aline Gheur Derksen, even if there is an express provision in a contract negotiated between the parties regarding the collection of the condominium fee without handing over the keys, such clause is null and can be reviewed by the Judiciary.

“Sometimes, the consumer is billed immediately after the occupancy. He has the right not to pay, transferring the responsibility to the developer, because he did not receive the keys, he did not receive the direct possession of the property. The jurisprudence is still majority and predominant in the sense that the consumer does not have to pay”, affirms Amaral.

HOW THE CHARGE OF THE CONDOMINIUM SHOULD BE DONE

• According to the STJ (Superior Court of Justice), the condominium fee can only be charged from the property buyer after the keys are released.
• Until the new owner can enjoy the property, the fee is the responsibility of the builder.
• However, it is common for builders and condominium administrators to start charging before the property is delivered.
• Even if this provision exists in the purchase and sale agreement, judges may consider the clause to be unfair

If you receive the collection of the condominium fee and/or IPTU without having the keys to the property, the buyer can:

1. Inform the construction company and the condominium administration, in writing, that they do not own the property, the collection being contrary to the national majority jurisprudence
2. Choose not to pay the charges and file a lawsuit in court to pay only when you actually have possession of the property
3. Make the payment and then file a lawsuit for double refund of amounts unduly charged, monetarily corrected and plus interest, according to the Consumer Protection Code

Stay tuned!

• There are court decisions that determine the payment of the fee before the keys by the defaulting buyer
• In these cases, the courts understood that the construction company could delay the delivery of the keys to the property and charge the condominium and IPTU, since the delay occurred due to lack of payment by the buyer​

Sources: Superior Court of Justice and lawyers Evelise Goes, Diego Amaral and Marcelo Tapai