Contrato de Gaveta: Evite riscos na hora de alugar seu apê

Drawer Contract: Avoid risks when renting your apartment

Have you ever heard about the possibility of purchasing a property through a private contract?

It became very popular in the 80s and 90s. At the time, many people sought this option because it was much more practical. With it, it was possible to obtain a property without having to go through all the bureaucracy and pay the fees that are normally seen when buying property.

At least, that's what many believed.

As time went on, many people began to see the risks that this contract entailed. Both sellers and buyers were subject to serious legal and financial problems.

This is because, although the under-the-table contract is still a common practice in the country, it is highly dangerous. The risks of ending up involved in tax damages are enormous, since it is not officialized in our legislation.

There is no denying that having the chance to purchase a property without having to pay all the fees and taxes that are common to this process is very attractive. But, as the famous saying goes: “ There is no such thing as a free lunch ”.

Although it may offer some benefits, opting for a contract out of the blue can end up bringing more harm than good. The last thing we want is to get into debt and have legal problems due to hasty decisions.

So, in this text we will explain in detail how the drawer contract works, its advantages, disadvantages and how to prepare for possible problems that may arise with your choice.

See the topics that will be covered:

  • What is a drawer contract?
  • Is the drawer contract risky?
  • What are the advantages and disadvantages of a drawer contract?
  • How to prepare for possible problems caused by a drawer contract?

Let's get started!

What is a drawer contract?

The contract for sale is an informal document used in the purchase and sale of real estate. Made directly between the owner and the buyer, it does not involve third parties or other institutions that are usually present in this process.

It is considered a private contract, since real estate agencies, banks and other entities are left out of the agreement. Many people choose this option because it is more practical and less bureaucratic, and the reason for this is quite simple.

Standard contracts for all property purchases involve several fees and need to be documented at notary offices, banks and many other institutions. Furthermore, many people suffer from the financing installments, which tend to be more expensive and take longer to pay.

As an alternative to this entire process, the drawer contract emerged. In it, the seller negotiates directly with the buyer, agreeing between themselves the obligations of each party and establishing the commitment.

All this without being registered with any official market body. This way, even if the property is still being financed, the buyer can purchase it until it is fully paid off.

In other words, the property will remain in the owner's name until the financing is paid off. During this time, the buyer, popularly known as the "drawer" in this process, will be able to own and live in the property.

Is the drawer contract risky?

Yes, a private contract is extremely risky. Even though it promises to avoid the fees and bureaucracy involved in purchasing real estate, those involved can run serious risks.

They involve everything from bureaucratic and legal problems, in the case of the owner's death, for example, to financial problems in the case of non-payment of installments.

All parties involved can suffer serious harm from a contract under the table. Let's take a closer look at the main ones for each party.

Risks for the buyer

The main risk for a buyer who enters into a private contract, if he lives there with his family, is that they will be left homeless if he dies.

After all, even if you have purchased the property, the place will not be in your name. Instead, it will be in the name of the seller. In this case, the home cannot be included in your assets and, consequently, passed on to your family members.

If the owner dies, the resident and his/her family may also be left homeless. In this case, the property will pass to the seller's heirs.

Another risk that may arise is the sale of the property to third parties. As the contract is made externally and directly between the parties, the owner may transfer the financing to another person.

The lack of registration in a real estate registry office, in this case, favors the occurrence of this bad faith scam.

Furthermore, the buyer runs the risk of the property not being transferred to his/her name, even after it is financed. This will increase the chances of being subject to all the dangers mentioned above.

Risks for the seller

For the seller, the main risk that may arise when opting for a contract under the table is in financial terms. More specifically, the possibility of the buyer not paying with the agreed financing.

An attitude of bad faith, as can also occur on the other side, will cause the owner to acquire enormous economic debts. As a consequence, his name will be included in credit protection agencies such as Serasa and SPC .

The losses you will suffer from this moment on may become even worse. For example, you may be prevented from taking out loans, financing, applying for cards or even completing certain purchases.

To make matters worse, as you will not have the assistance of any financial institution due to the informal agreement signed in the undercover contract, you will have greater difficulties in getting out of this situation.

Not to mention the possibility of being sued if you are unable to pay all your debts, or even facing legal action if the situation persists.

What are the advantages and disadvantages of a drawer contract?

Overall, there are far more disadvantages than advantages to entering into a private contract. This is because this model is not legalized and, as we discussed above, is susceptible to numerous risks and consequences for everyone involved.

Despite this, there are in fact certain benefits that make many people seek it out. Among them is by far the ease of purchasing the property, without having to deal with all the bureaucracy that is usually part of this agreement.

If you are in doubt about whether to accept it or not, you should first of all know the two sides that you can face. Therefore, check out a summary of the main advantages and disadvantages of this contract below.

Advantages

The main advantage of the drawer contract is the greater ease that the tenant will have when purchasing the property .

As the contract is signed directly between the parties without the participation of real estate agencies or brokers, the buyer will not have to pay the fees or taxes that apply to the purchase.

Furthermore, this also contributes to the case where the buyer is unable to afford financing for the property. He or she may still purchase the property without having to prove his or her financial situation, since it will remain in the owner's name.

In this sense, people who have difficulty in getting a line of credit approved can rest easy. No banking institution will block the process or require any document that proves such capacity.

Disadvantages

Among the disadvantages of the under-the-table contract, its lack of legal validity is, without a doubt, the main one that should be highlighted. Its very name, in fact, refers to a “hidden” practice, as if it were really something sneaky.

This contract is an unofficial document and therefore not regulated by any real estate agency, notary's office or any other official body. The rules are set by the seller and the buyer, restricting all practices between them without the interference of third parties.

Although this is not enough to consider it illegal, this lack of validity brings numerous disadvantages. For example, all the risks mentioned above such as default on payment, the possibility of tenants becoming homeless, and debt.

Not to mention the problems that the tenant may have during their stay. If we compare it with the standard rental agreement , for example, the Tenancy Law establishes a series of rules to be followed and complied with by both parties.

They involve the obligation to inspect the property before signing the contract, proof that it is in perfect condition for use, payments made on time, compliance with the advance notice in cases of early departure, and many others.

Without a law requiring such compliance, these rules are in vain. Both the seller and the buyer can get into debt, lose the property, and face serious consequences.

Therefore, it is possible to say that the disadvantages of a private contract are much greater than its advantages. Even though they seem positive, is it worth taking the risk?

How to prepare for possible problems caused by a drawer contract?

If you have been involved in a contract under the table, it is important to take some steps to prevent as much as possible from all the risks it may cause.

Even when faced with several serious problems, you can prepare yourself by taking some precautions. Among them, we have already highlighted that legal support is the greatest precaution to be sought. Even if this document is not valid under our legislation.

Check out all the tips below to help you.

Find a lawyer

Even if the contract does not involve third parties, it is advisable to seek the assistance of a lawyer if you are, in fact, going to participate in this agreement.

This professional, especially when specialized in taxes and real estate operations, will have extensive knowledge to guide and advise you throughout the process. And most importantly, to help you if any problems arise.

There are several law firms that specialize in this area that can help you. Therefore, it is important to inform the lawyer that you are participating in a private contract and communicate everything that has been agreed between the parties.

This way, he will be aware of everything that is happening and will be able to prepare himself adequately to deal with whatever may occur.

Have legal support

In addition to a lawyer, an important tip to avoid the risks of a secret contract is to seek greater legal support in the process.

In other words, this means seeking to have the document recognized by a notary. The purpose of this recognition is to bring greater authenticity to the contract, since it will include the signatures of all parties involved and the documents required for its signing.

Furthermore, it is important to ensure that the contract is written as completely as possible. It should contain information such as the payment method, the amount of each installment, and how the property ownership will be changed.

The rental agreement is a great example that can be used as a reference when drafting this document. Because it is based on the rules set forth by the Tenant Law, it is very complete with everything that must be done and followed by the landlord and tenant.

With this information expressed, both the seller and the buyer will have greater security in the agreement signed, thus avoiding misunderstandings and the chances of being targets of the risks that we highlighted above.

Save emails and receipts

The contract is an informal document. Therefore, it is important that you keep all conversations you have with the seller or buyer.

It is important that everything is documented and saved, so that there are no doubts later about what was agreed between the parties. This will avoid misunderstandings and attempts at scams in bad faith.

In addition to the conversations, be sure to keep all receipts and purchase receipts. They are essential for you to prove that you paid with a certain installment or financing.

Only accept the drawer contract as a last resort

Finally, this is more of a recommendation than a tip on what to do in cases of risk. Before agreeing to be part of a secret contract, make sure that it is really the last option available for you to purchase the property.

Remember that the advantages of avoiding taxes and fees when buying a property may not bring the desired results in the long run. Even if you already live in the place, both the buyer and the seller may still be victims of financial and legal risks.

So, look for other alternatives that can serve you in the same way, without having to subject yourself to such risks.

Want a very effective example? The unsecured lease agreement.

The vast majority of rental agreements require the tenant to have some type of guarantee, as a form of financial protection. However, it is possible to sign such a document without the use of any guarantee.

It greatly simplifies the process of renting a property, both in the rental itself, reducing bureaucracy, and in cases of eviction or departure.

To make things better, this model is legally valid! Which provides even greater security for those involved. You can understand how the unsecured contract works on our blog, we have a complete article about this model and all its benefits.

Conclusion

The outright contract is highly sought after by those who wish to purchase a property. This is done without having to deal with all the bureaucracy involved in this process. Or even without having to pay the fees and interest included.

As popular as it may be, it does not mean that it is a safe option. This model has several disadvantages and high risks, which can cause serious harm to both parties involved.

So, look for safer options before deciding to sign this contract.

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