The build-to-suit lease in Brazilian Private Law: an analysis of the general provisions of the Landlord and Tenant Act in contrast to the parties’ stipulation restricting the adjustment of the rent by Court

Abstract

The use of built-to-suit leasing, in which the landlord provides a dual service by granting direct possession of the property and customizing the building to the tenant’s previously expressed needs, has been on the rise, producing positive impacts on the economy. However, there are also many questions about whether or not it is pos­sible to adjust the contract terms by Court. This study, based on legal literature and case-law, aims to investigate this possibility considering the pro­hibition on modifying the rental value contained in article 54 of Law 8,245/1991, as amended by Law 12,744/2012. It was found that the built to suit contract constitutes a typical lease and, thus, the adjustment of the contract terms by Courts is admissible based on the law’s general provisions, the social function of the contract and good-faith, as well as article 317 of the Civil Code, even if the parties had previously agreed that the rent should not modified.