TJSP validates brokerage commission charge in timeshare contract.

In a recent ruling, the 5th Chamber of Private Law of the Court of Justice of São Paulo analyzed Civil Appeal No. 1026496-07.2021.8.26.0554, filed by consumers who requested the rescission of a promise to purchase and sell fractional ownership of real estate under the timeshare regime, with a request for full reimbursement of the amounts paid, including the brokerage commission.

Timeshare ownership—regulated by Law 13.777/2018—is a model that allows the acquisition of fractional ownership of the same property, with the right to exclusive use of the acquired fraction during specific periods. It is a form of shared ownership, increasingly common in tourism developments.

Regarding the brokerage commission, the plaintiff argued that the commission charge was undue, and therefore its restitution was warranted. However, the São Paulo Court of Justice (TJSP) rejected this request, recognizing the validity of the contractual clause that transferred the responsibility for paying the commission to the buyer, provided that the requirements defined in STJ (Superior Court of Justice) Precedent 938 were respected, namely: express provision in the contract, indication of the total value of the acquisition of the autonomous unit, and highlighting of the brokerage commission value in relation to the total value of the acquired fraction.

The ruling highlighted that the signed contracts expressly and prominently provided for the brokerage value, as well as the buyer’s awareness of their obligation to pay. Thus, since the fulfillment of the duty to inform was proven, there is no illegality in charging the commission, nor justification for the return of the amount in case of contract termination.

The decision reinforces the argument that, provided it is previously informed and the value is highlighted in the contract, the clause that transfers the burden of paying the brokerage commission to the buyer is fully valid; this fee remunerates the broker’s work in the intermediation and is due simply upon the conclusion of the transaction. In such cases, even if there is a subsequent termination of the contract, the refund of the amount paid as a brokerage commission is not warranted.