Contrato built to suit no Brasil: entre a inovação imobiliária e a necessidade de regulação específica

Abstract

This paper seeks to address how the changes introduced by Law No. 12,744/2012 have popularized a new contractual model called “Built to Suit”, the use of which is especially aimed at stimulating urban development in the real estate scenario. In this context, it is important to know that this type of legal business is still little debated in Brazilian courts, although it is a growing trend for companies, and it is necessary to carry out research into this type of contract, understanding what its particularities are and how it differs from the typical rental contract. “Built to Suit” can be defined as a legal transaction in which one party undertakes to carry out, either by building itself or by a third party, on a property it owns, a work requested tailor-made for the tenant, in return for payment, assigning the use of the building for a fixed term. Given this context, how would it be possible to balance the economic interests involved in this type of contract, guaranteeing not only the protection of the lessor in view of the substantial investment made, but at the same time preserving the inherent rights of the lessee, given the absence of specific regulations? The study aims to analyze the “Built to Suit” contract in the light of Brazilian legislation, with emphasis on art. 54-A of Law No. 12.744/2012 (Tenancy Law), in order to identify its limitations and discuss possible improvements to better adapt it to the principles of legal certainty, social function and objective good faith. Specifically, it seeks to identify the main legal and economic characteristics of built-to-suit contracts and differentiate them from other types of non-residential rental contracts; discuss the legal nature of the builtto-suit contract in Brazil, questioning whether the provisions of article 54-A are sufficient to guarantee the legal security of the contract; investigate national case law to understand how the courts have dealt with conflicts involving contractual revisions and default in built-to-suit contracts; and assess the suitability of the aforementioned contract for the Brazilian legal system, with an emphasis on risk mitigation and guaranteeing the performance of built-to-suit contracts.