O patrimônio de afetação da incorporação imobiliária e sua (in)compatibilidade face a recuperação judicial

Abstract

The aim of this work is to understand the institute of the allocation of assets of real estate developers and its impracticability during Judicial Reorganization, since special purpose companies are subject to the regime established by the Incorporação Law. Due to the exponential growth of the real estate market as well as the concern with the faithful fulfillment of the obligation by the developers associated with the risks of the activity, the legislation was forced to preserve creditors as well as to ensure the patrimonial organization, creating a separate patrimony that intended to protect a possible default during the execution of a work. In this regard, aware of the possibility that developers may face times of financial crisis and, furthermore, despite the lack of express regulation regarding the treatment attributed to earmarked assets during the processing of judicial recovery, the aim here is to (i) examine the concept of heritage and its construction from the idea of ownership to, then, enter the characteristics of the institute of affectation heritage to understand the motivating reasons that propelled the legislative innovation on the subject; (ii) analyze the Judicial Reorganization procedure and its purpose; and (iii) demonstrate that the allocation of assets is not subject to universal judgment, as special purpose companies have a regime incompatible with the nature of the recovery institute. With a view to achieving this objective, the research contains an analytical-descriptive nature, featuring readings of articles, doctrines, theses, dissertations and jurisprudential understandings