As inovações acarretadas pela Lei no 12.744/12 na Lei de locação e no setor imobiliário

• Autor(a) principal: Lopes, Marcelo da Camara
• Data de Publicação: 2014
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/34981
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVIL; Lei no 12.744/12; Locação; Setor imobiliário; Inovações; Law no. 12.744/12; Lease; Real estate industry; Innovation

This monograph raises the issue related to innovation brought about by Law No. 12.744/12 which amended Art. 4 and added Art. 54-A to the Law of Urban Real Estate Lease with provision for the lease of adjusted construction dubbed by the housing market as "Built-to-Suit", proposing a debate about such innovation in Lease Law and its impact in the real estate industry. This topic is of enormous complexity because prior to the amendment to this law, lease for adjusted construction was widely used by the real estate industry and considered atypical, with no clear citation in our legal system and yielded legal uncertainty to participants. One must understand that such type of contract is very complex allowing companies to avoid capital mobilization to an industrial plant, assisting financial tenants or investor groups to achieve their goal, and, in return, paying long term rent as a form of retribution. For this type of contract, there are two separate and distinct phases. They are, however, related to each other. The first phase is lease agreement with adjusted construction between entrepreneur and the tenant, and the second phase is funding the project. The tenant is concerned, at first, in receiving the property within the set date and under established conditions with guidelines provided in the industrial blueprint. The tenant is not concerned with the financial framework to finance the project. That should be borne by the entrepreneur. The entrepreneur, on the other hand, after signing the contract of the adjusted constructions runs to the market to find the best way to raise funds for the project construction at a low cost in order to maximize project’s profit. In such cases, an alternative used by real estate developers is to resort to the real estate financial market using securitization companies to issue Real Estate Receivables Certificates (CRI) backed in the project and, in return, giving investors returns through rental payments made by the tenant, generating a dividend to participants of this type of operation. The risk is spread among all participants in the real estate development, and the company does not need to provide capital for construction only having to fulfill its obligation to pay the set rental amount. But not everything is perfect in real estate development from the future tenant’s standpoint. In operations of such magnitude, the entrepreneur binds the contract with pecuniary clause on their own favor, making the tenant waive some rights described in the Lease Law, such as the waiver to the right of review and landlord's right to repossess the leased property with or without stating reasons cited in leases for eviction situations. And at the end of the day, the tenant’s sole option is to pay rent as provisioned in the agreement for the set period of time