Commentary on Judgment No. 22656 of 2024: Nullity of Preliminary Sale Agreement and Building Permit

Judgment No. 22656 of August 9, 2024, issued by the Court of Cassation, addresses a highly relevant issue in civil law, particularly concerning the validity of real estate sale contracts. The central question is whether the nullity provided for by Article 40 of Law No. 47 of 1985 can extend to preliminary agreements for the sale of properties lacking the necessary building permit.

Regulatory Context

Law No. 47 of 1985 governs matters related to construction and, in particular, establishes that acts concerning properties lacking a building permit are null and void. However, the Court has clarified that this nullity applies exclusively to contracts with transfer effects, such as final sales, and not to preliminary agreements, which have a different, mandatory effect.

Nullity ex Art. 40 of Law No. 47 of 1985 - Scope of Application - Preliminary Sale of Property Built Without Building Title - Exclusion - Rationale. The nullity sanction provided for, ex Art. 40 of Law No. 47 of 1985, for transactions concerning properties lacking the necessary building permit, applies only to contracts with transfer effects and not to those with mandatory effect, such as a preliminary sale agreement. This is not only due to the literal wording of the provision but also because the declaration referred to in Art. 40, paragraph 2, of the same law, in the case of properties built before September 1, 1967, or the issuance of a regularization permit, can occur after the preliminary agreement.

Analysis of the Judgment

The Court, examining the issue, highlighted that the distinction between contracts with transfer effects and contracts with mandatory effect is fundamental to understanding the application of nullity. Indeed, in the case of a preliminary sale agreement, the parties undertake to enter into a final contract in the future, and nullity cannot be invoked at this stage, especially considering that a regularization permit can be obtained even after the preliminary agreement has been signed.

• Nullity applies only to final contracts.
• Preliminary agreements remain valid even in the absence of a permit.
• Possibility of obtaining a regularization permit after the preliminary agreement.

Conclusions

Judgment No. 22656 of 2024 represents an important clarification regarding preliminary sale agreements and building permits. It emphasizes the need for careful interpretation of laws and contracts, highlighting that nullity, which may seem like an immediate solution to legal problems, must be applied cautiously to avoid compromising negotiations between parties and the validity of their agreements. The practical implications of this judgment could affect many real estate professionals and their clients, making legal advice in these areas essential.