THE SEGREGATED ASSET POOL AND ITS ROLE IN RESTORING BUYER CONFIDENCE IN THE REAL ESTATE DEVELOPMENT MARKET

Abstract

The purpose of this study is to examine the importance of the legal mechanism known as the segregated asset pool (patrimônio de afetação) in restoring the confidence of purchasers of pre-construction real estate units, particularly in the aftermath of the nationally known and emblematic “Encol Case.” Accordingly, the paper will define the main civil law institutes related to the proposed topic, as well as the activity of real estate development (incorporação imobiliária) as a driving force of the country’s economy. In this context, the study will address the crisis that arose in the real estate market during the 1990s, which resulted in a breakdown of trust among property purchasers due to their vulnerable position in relation to the developer and its business model, which frequently used the funds from one project to finance others. This work will also present the historical legislative evolution that culminated in the creation of the segregated asset pool, introduced initially through Provisional Measure No. 2.221/2001, later revoked by Law No. 10.931/2004, which added Articles 31-A to 31-F to Law No. 4.591/1964. These provisions were recently amended by Law No. 14.382/2022. Finally, the study will discuss practical aspects that provide purchasers with legal security and protection in the event of the developer’s insolvency, ultimately enhancing the value of the project and offering economic benefits to the developer, who may take advantage of the Special Taxation Regime (RET).