Contratos built to suit

Abstract

The scope of this study is to clarify the concept and main characteristics of the build to suit. Will be addition to topics like the related transactions, the financing means, built to suit and surface rights and built to suit and real estate leasing, this study will analyse the main arguments used by the scarce doctrine and by a few judicial decisions to support that there is or that there is not specific legal rules regulating this contract, in order to clarify the rules that shall be applicable thereto. Usually, in the built-to-suit contract, the lessor previously acquires, builds or reforms a real state property, by himself or through third parties, as specified by the tenant, and the real state property is rented by a pre-ordered period of time. This kind of economic operation has elements of several typical contracts. Because of this situation, there are several controversies related to the juridical essence of this type of contract. In order to bring a solution to this situation, in 2009 and 2011, two Bills were proposed in the House. During the legislative procedure, some solutions were suggested and the two Bills became one. The Bill aimed to submit the built-to-suit contracts to the Tenancy Law (8.245/91), just like the shopping center contracts. The legislative proposal also used the procedures of the Tenancy Law (8.245/91). In this context, built-to-suit was named, in Portuguese, “locação nos contratos de construção ajustada”. The Bill was approved by the House and by the Senate, and in 19th of December of 2012 the President sanctioned it, only vetoing partially the rule under art. 54-A, §3o. Published on 20/12/2012 was numbered as Law no 12.744, of December 19, 2012