Acesso à moradia em contratos imobiliários: microssistema de proteção do consumidor e os efeitos da resolução contratual

Abstract

Real estate contracts involving purchasers seeking access to housing, from the perspective of protection of the Consumer Defense Code, are the object of inquiry in this dissertation, verifying the socioeconomic consequences of the wrongful resolution of real estate legal transactions. This research analyzes the understanding of Precedent nº. 543 of the Superior Court of Justice and its effects on the execution of contracts involving purchasers-consumers in search of access to housing through the acquisition of property, in light of the theories of horizontality of the effectiveness of fundamental rights in the relationship between individuals and the principle of legality. The central problem that we seek to answer is what is the best format for state action in protecting fundamental housing rights and consumer protection in real estate contracts. The post-1988 Brazilian normative experience demonstrates that the express cataloging of social rights in the Constitution of the Federative Republic of Brazil is still insufficient to guarantee the realization of the basic conditions for a dignified life for all citizens, largely frustrating the constituent commitment signed by the text promulgated on October 5, 1988 and reinforced by the one hundred and thirteen Constitutional Amendments and six Revision Constitutional Amendments to date. In this context, the social right to housing, included in article 6, based on the wording given by Constitutional Amendment nº. 26/2000, is a clear example of the insufficiency of public policies and the infra-constitutional normative framework in allowing the recipients of the state obligation to be , in real and concrete terms, adequately benefited, which is revealed in the face of the existence of a housing deficit and of a precarious scenario of urban housing, acting as an obstacle to the protection of human dignity, one of the foundations of the Republic. Thus, the real estate activity developed by the private sector, with the stimulus and promotion of housing programs and regulated by the legislation of the federated entities, is an essential element for the reduction of the housing problem in the country, allowing not only the increase of the stocks of units buildings, as well as the improvement of existing housing, especially in urban densifications, which, in addition to raising the quality of life in cities, allows for the optimization of urban land occupation based on adequate and consistent planning by the municipalities.