Withholding the keys in order to collect an outstanding balance cannot be sustained when the bank has already financed most of the property.
The withholding of keys by the developer in order to collect an outstanding balance is abusive when the bank has financed most of the purchase price. That was the ruling of the 35th Chamber of Private Law of the TJ-SP (São Paulo State Court of Appeals), in a 2026 judgment that reaffirmed Theme 886 of the STJ (binding precedent of the Superior Court of Justice). In practice, the developer may not keep the purchaser out of the property in order to pressure them into paying. It must pursue the remaining balance by other means.
Why withholding the keys places undue pressure on the purchaser
In the case decided, the residual balance was approximately BRL 86,000.00. The Habite-se (certificate of occupancy) had already been issued, and the bank had already transferred the funds to the developer. Even so, the construction company did not hand over the apartment. The purchaser spent more than two years without access to the property while, at the same time, bearing the related charges.
Under a fiduciary transfer of title (alienação fiduciária), ownership remains with the bank until full payment. For that reason, the developer has no security interest of its own to protect by holding the keys. The court regarded such conduct as a means of forcing payment, and not as a right of the company. Collection of the balance remains possible, but through appropriate judicial and extrajudicial means, without affecting the purchaser’s housing.
Which charges fall away when the keys are delivered late
Theme 886 of the STJ provides that the purchaser is only liable for condominium fees and IPTU (municipal property tax) after being placed in possession, which occurs upon delivery of the keys. Accordingly, the judgment of the 35th Chamber of Private Law of the TJ-SP set aside the charges relating to the period prior to the apartment being made available. It also upheld the reimbursement of the rent paid during the period of withholding. The court further upheld the award of moral damages in the amount of BRL 10,000.00.
What developers and purchasers should check now
For the developer, the consequence is financial. Withholding the keys may give rise to liability for rent and damages, in addition to the loss of the charges for the period. Purchasers in a similar situation, on the other hand, should gather the Habite-se, proof of the bank’s transfer of funds and the rent receipts.
In our view, the decision reinforces a line of case law that is already settled, but each contract calls for its own analysis. The date of the judgment and the existence of any pending appeal still need to be verified in the full text. Before withholding the keys or challenging such withholding, review the judgment and the financing agreement.
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