After weeks of not knowing what would happen to their properties from the bankruptcy of the construction company Porto Freirethe 225 unit owners of the Solaris Residence condominium, in Fortaleza, have been given full responsibility for the development, including the maintenance of the current structure and the completion of the work.
Although they have been reassured by deciding the fate of their own apartments, the initial estimate indicates that making the units habitable will cost around Additional R$300,000 to future residents.
The value is indicated by the chairman of the commission of representatives of Solaris, the businessman Thimotio Braz, and refers to the obtaining employmentdocument issued by the town hall which authorizes the beginning of the effective use of the co-ownership.
P2S, the company managing the bankruptcy of the construction company, handed over the keys to the company to the committee of landowner representatives last April.
The condominium currently has approx. 95% of work completed. In view of the small part of services remaining to be provided, the future inhabitants of Solaris decided in assembly to carry out the project.
Type of Contract
Businessman Thimotio Braz has been chairman of the commission of representatives since 2013, when the group was created. Representation was already necessary at the time given the model of constitution envisaged, in this case, by contract with assignment of property.
Real estate lawyer Apolo Sherer Filho explains that there are three types of real estate development:
- At the promoter’s risk and expense – the promoter undertakes to build and sell the future properties, without the legal figure of the commission of representatives
- by contract – the project is built by a contractor, but there is a mandatory commission of representatives, even if the project is built without taking the opinion of those who will buy
- By administration – also called closed or cost condominium, in this modality the condominium is the one who pays for the work, so that the buyers of the units assume the responsibility and the risk of the company
Apollo further states that the patrimony of assignment it is a resource that establishes the accounts of the project separately from the accounts of the construction company, including income and debts.
Thus, even in the event of bankruptcy of the promoter for example, the commission of agents is responsible for the management of the accounts and the continuation of the work.
“We can conclude that the purpose of the affected asset is to ensure, materialize the continuity and delivery of the units that are under construction, even in the event of bankruptcy or insolvency of the construction company, the promoter,” he said.
The expert adds that the independence of accounts and the protection of the assets and interests of the buyers are the main advantages of this choice, in addition to better financing rates and a special tax regime.
On the other hand, he warns that it is necessary for the commission to hire a audit to control and control the accounting of work, including the collection of taxes, receipts, among others.
When you have a work that is under the affected heritage regime, the care with this type of acquisition is in the sense of checking whether the affected heritage is registered at the property registry office, whether this audit has been contracted, and even to know if all this work documentation is regularized”.
Apollon Scherer Son
Lawyer specializing in real estate law
delays and entanglements
Thimoteo recalls that the commission of Solaris representatives actively followed the progress of the work, with periodic meetings with Porto Freire until mid-March 2015, the date by which the condominium should have been completed.
However, the first delays came and the others committee members eventually withdrew properties, either by entering into an agreement with the construction company or by selling the quotas. The commission was then eventually disbanded, until this year it was re-established.
After the resolution of the initial complaint, the receipt of the keys of the condominium, the group of residents now faces new difficulties and bureaucracy put into practice the intention to complete the work.
one of them is the access to own corporate accounts. Thimoteo explains that Solaris’ CNPJ is listed as bankrupt and the accounts are frozen, so it’s not yet known if there are any open balances or debts.
In this context, the commission decided that the best solution would be to open a new CNPJ, because there is a risk that, when reactivating the old CNPJ, all the money from the completion of the works deposited in the old account go to the payment of possible debts. .
However, to have a new CNPJ, the commission had to register the minutes of the meetings with the owners in a notarial office, to then open a bank account for the residential.
“We still don’t know if he has any debts. It’s likely he has some balance, but we don’t know the amount either. Such a low value,” says Thimoteo.
Due to all this bureaucracy, which is still being resolved, owners will have to deposit the first installment for the payment of emergency services into the account of the chairman of the commission.
In May, potential residents with active contracts had to pay BRL1,750.67 regarding the payment of the surveillance service, which had to be contracted on the same day of receipt of the keys, cleaning of the grounds, maintenance of the swimming pool and payment of legal advice.
The chairman of the commission points out a second imbroglio in the process, which is the verification of all contracts issued by P2S to see which ones are still active.
Indeed, the documentation provided by the construction company is neither complete nor fully catalogued. Because there have been many cancellations, the commission, with legal counsel, always confirms those that are still in effect.
In addition to maintaining and resolving initial bureaucratic issues, the resident group has already begun to works execution budgets. For each service and purchase, there must be at least three quotes, among which the residents will decide on the best value for money.
Concerning the Habite-se, Thimoteo specifies that there are two stages: the first is the end of common areas of the company and the second, the internal conclusion of the apartments.
He also indicates that because of the effort that everyone puts in, the owners intend to complete interventions later this yearalthough many processes are not solely dependent on the contracting of the commission itself, such as the supply of water and electricity.
Residents are very interested in the completion, because in this delay process many of them have lost their ability to pay. The financial reality of families before the pandemic was different and since the payment of the financing does not start until after the handover of the keys, many want to sell the quotas and recover the damage they have had.
Entrepreneur and Chairman of the Solaris Representatives Committee
Lawyer Nazare Silva Cajado says she is relieved by the handing over of the keys to the company, but recalls that there is still a long way to go before the total resolution of the nightmare that the purchase of these units has become.
“P2S contacted the commission and handed over not only the keys but also all the charges. Now all owners will have to pro-rata the completion of the works. The water supply alone is around R$180 thousand” , he points out.
“But it’s a series of headaches. It even triggers depression. But our only way out is to hope that everything will be fine as soon as possible, because it’s years of waiting. There are people who gave their blood to pay for these apartments.”
The entrepreneur Antônio Maurício Tavares, who Services Provided on the Solaris Site with payment in condominium units and has a debt of 2 million reais, it is also a little more optimistic after the keys are handed over.
He reports that he has contacted suppliers with whom he has outstanding debts for a more positive response and outlook, although concern remains.
“They will have to wait a bit longer, until the procedures are all correct and the units are delivered. But it was reassuring, not 100%, because we are in this transition process, but a little, at the less to put our heads in the pillow and be able to sleep, it did,” he says.
What does Porto Freire say?
Contacted, P2S, administrator of the collective mass of the Porto Freire group, confirmed that it had handed over the keys of Solaris to the president of the commission of representatives on April 8 and stressed that the commission “had been warned in advance of the responsibilities that it would assume, so that the bankruptcy estate has no interference in the completion of the works and the receipts of the purchasers”.
Asked about the balances and debts related to the project, the clarification transmitted by note specifies that it is the responsibility of the commission “to carry out an inventory of the existing resources for the realization of the works, as well as the debts which must to be distributed among the purchasers for the completion of the construction works”.
The administrator also informs that, “if there is a credit balance, at the end of the work, after settlement of all the financial obligations of the Affected Property, this balance must be collected by the Deed of the Bankrupt”.
The lawyer specializing in real estate law, Apolo Scherer Filho, explains that in fact the return of values is provided, but only after verifying that all labor, social security and tax obligations have been paid.
“If the buyers have advanced the amount with their own resources, they will be reimbursed. If a financial institution has made some type of financing, it will also be paid. Once all the obligations have been settled and duly paid, and if there is a balance, the rest goes to the mass of the bankrupt”, details.