Contracts Built to Suit: new challenges of the Brazilian housing market

• Grant number: 19/13059-0
• Support type: Scholarships in Brazil - Scientific Initiation
• Effective date (Start): November 01, 2019
• Effective date (End): October 31, 2020
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal researcher: Alessandro Hirata
• Grantee: Vitoria Mattos Gonçalves
• Home Institution: Faculdade de Direito de Ribeirão Preto (FDRP). Universidade de São Paulo (USP). Ribeirão Preto , SP, Brazil

Abstract

In face of population growth, rural exodus and economic development, the biggest problem of the housing market in Brazilian centers is the lack of capacity to deal with the disorderly expansion of the urban area, of a greatly accelerated order. Thus, reflection on new types of real estate contracts such as Built to Suit (BTS) is necessary in order to help and expand the possibilities of using the property in the present day. The development of industrial and commercial enterprises in the process of Built to Suit is a relatively new subject in Brazil, but has been widely diffused abroad since 1950s, mainly in the United States and Europe. It arose from the need of the big companies to settle in a property that could observe the specificities of their business activities. Faced with the difficulty in finding a property that met its economic objectives in the location market, the companies ended up immobilizing their capital in the acquisition of the land and in the construction of the new unit. So, instead of investing that amount in their own business, they ended up immobilizing their capital in this operation, which is not part of their core business. With the advent of this demand, real estate investors appeared in order to meet this need, avoiding the immobilization of capital. In Brazil, in the 1990s, as a result of the global integration of markets and the growth of our economy, the country became an attractive pole for transnational corporations, which brought their contractual models, including Built to Suit. However, until then the regulatory framework of Law 8.245/91 was insufficient to guarantee legal certainty to investors, and in some points even incompatible with the BTS operating models. The important milestone for the BTS contract in Brazil was an inclusion of art. 54-A in the Tenancy Law, by Law No. 12,744 of December 19, 2012, as an effort to legislate to confer legal certainty and preserve a private form itself in "fit construction" contracts, enshrining freely agreed terms between the parties against the current legal dirigism. As the procedural provisions came to be applied by the Law of Tenancy, the expressions for the mention of the legislator in dealing with the BTS, such as the lease modality, unfortunately, did not prevent the perpetuation of much of the controversies, Elements of reflection on the adequacy of the legislative technique in inserting the Built to suit a Tenancy law system, which is law and teleological and axiological aimed at the protection of candidates. from a common location. It interests to this work to make a plan of ambiance, although scarce, in the on for to be constructed in the Brazilian market, without losing the look of the jurisprudence in the last years, as the legal constructions and already consolidated, as well as the bills of law and provisional measures most recent. Please note that the ways of acting on the obligations are linked, such as the real estate securitization transactions and surface right assignments, relevant in the scenario. negotiating coalition. In addition, to illustrate the study, present cases of application of the BTS contract in the real estate market, such as a renovation of the Palmeiras stadium (Palestra Italian) to become a majestic multipurpose area for football matches and spectacles, an Allianz Parque arena.