Transfer fee in shopping centers is illegal

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The leasing of spaces in shopping centers is considered a type of atypical contract by Brazilian courts, in consideration of the particularities of this type of agreement and under the terms of article 54 of the Tenancy Law.


It happens that landlords often insert abusive clauses in lease contracts, which are not justified in light of the needs of shopping centers and contradict the contractual good faith established in the Civil Code. Among such B2B Lead clauses is the one that equates the change in corporate control of the tenant legal entity to the assignment of the lease contract (which, under the terms of article 13 of the Tenancy Law, must be authorized by the landlord).

This contractual device is used, in practice, to prevent the partners of the tenant legal entity from selling their company to third parties, or to demand the collection of amounts as a “transfer fee”; the sale of the company without the lessor's authorization subjects the storeowner to eviction for breach of contract.



Recently, however, the São Paulo Court of Justice confirmed a lower court decision that recognized the abusiveness of these clauses. This is because, when a property is leased to a legal entity, the change in its corporate control does not result in a change in the tenant, who remains the same; The legal personality of the company is not to be confused