ValidaAuditoria
Note 02 · 24/09/2026
See what is proven and what is assumedThe report says the construction is 58% complete. That number reaches the investor, the buyer of the unit and the bank financing the build, almost always identical in all three. Law 4,591/1964, in art. 43, I, requires a developer who sells at a fixed term and price to send the buyers' representatives' committee, every 3 months, a "statement of the state of the works." The law guarantees that the number arrives. What remains is the question that is worth money: 58% measured how, on what day and by whom?
As Valida reads it, a construction percentage is only information when it carries the date, the method and the name of whoever measured. Without those, it is a well-formatted narrative. And the law has already opened the door to checking: art. 31-C allows the buyers, through their committee, and the financing bank to appoint, at their own expense, someone to oversee a project whose money runs separately from the developer's, without inheriting responsibility for it. The measurement nobody wants to make has a legal address. What is missing is someone to ask for it.
"58% done" does not mean that 58% of the bricks are in place. The executed percentage measures how much of the work is finished in proportion to the total cost. It works like the progress bar of a download, with one difference: each piece weighs something different. The foundation weighs more than the door handle, because it costs more.
The weight comes from the physical-financial schedule (cronograma físico-financeiro), the spreadsheet that says, month by month, which service will be done and how much money it consumes: the recipe with the list of ingredients and the price of each. If the structure accounts for 22% of the budget and is 80% done, it contributes 17.6 points. The contributions are added up, and out comes the number in the report.
The arithmetic is simple. The hard part is what goes into it: the weight is in the budget; the percentage of each service is something someone has to state. And tying the physical to the financial is nothing new. Law 4,591, in art. 53, V, already provided for a "criterion for coordinating the construction schedule with the payment of installments."
The office estimate starts from spreadsheets, purchases and conversations with whoever runs the site: it is an informed guess. The measurement (medição), an independent measurement of physical progress of construction, goes to the site, service by service, and checks what was actually done. It is counting the bricks in the wall, not on the purchase order. The supermarket scale set against "about a kilo."
Neither is dishonest. The estimate follows intention: the contracted service, the delivered material. The measurement follows the result. When something stalls, the estimate is slow to notice, because it looks at the plan.
The decisive point is the date. A measurement says "on this day, this person saw this." As Valida reads it, an estimate rarely says when it is from, and so it circulates without aging, produced once by someone who has an interest in it being high. Not because anyone lied. Because an instrument with no date has no way of contradicting itself.
In the 1964 wording, art. 43, I, required buyers to be informed "at least every six months." Law 14,382/2022 shortened the cycle to 3 months. Anyone who cites the six-month deadline is citing a law that has already changed.
The representatives' committee (comissão de representantes) brings together at least 3 buyers (art. 50), to represent them "in everything that concerns the good progress of the development." It is the buyers' building manager before the building exists. In contracts where the builder does the work for an agreed price (empreitada), it "shall oversee the progress of the works and compliance with the Project and the specifications" (art. 55, §3). Where the work is done by administration, at cost, with the buyers paying the full cost, it may examine the builders' balancetes (statements of receipts and expenses), approve them or challenge them, with the supporting documents (art. 61, "a").
Under the segregated estate (patrimônio de afetação), the bar rises. The regime, introduced by Law 10,931/2004, separates the land and the project's money from the rest of the developer's assets, like a savings account "only for the renovation." Art. 31-D, IV, requires, for the committee, at least every three months, a statement of how the works match "the agreed deadline or the financial resources" received, "signed by qualified professionals."
Two readings follow. The statement compares the works with time and with money; a percentage that does not say what it was measured against answers only half the question. And the signature matters: under Law 5,194/1966, art. 13, engineering work has "legal value" only when its author is a qualified professional, and art. 14 requires the title and the registration number of whoever signs.
As Valida reads it, the design has a natural slack. The one who produces the statement is the party most interested in the number being good. The ones who receive it are buyers, generally without engineering training. The law noticed the slack and supplied the tool to close it.
The main provision is short: "The Representatives' Committee and the financing institution of the construction may appoint, at their own expense, an individual or a company to oversee and monitor the segregated estate." It is the legal basis of independent measurement.
Paragraph 1 dispels the most common fear. The appointment "does not transfer to the appointing party any responsibility for the quality of the works or for the delivery deadline of the property." Hiring someone to check does not make the buyer a partner in the delay. Paragraph 2 covers the other side: whoever receives the information answers "for lack of care, dedication and confidentiality." The inspector owes care; the inspector does not promise a result.
An inspector without access measures the facade. That is why art. 31-D, VII, requires the developer to assure the appointed person "free access to the works, as well as to the books, contracts and movements of the exclusive deposit account."
The limit needs to be stated. The segregated estate is the developer's option (art. 31-A) and is constituted only by recording a term in the property registry (art. 31-B). Outside that regime, the committee keeps the oversight powers the law gives it (arts. 55, §3, and 61), but Valida did not find, in the rules it read, an express duty for the developer to open books, contracts and the account to an inspector appointed along the lines of art. 31-C; access then depends on the contract.
The financing bank, called the financial agent, releases the money in stages, like someone who pays the bricklayer after seeing the wall go up. To do that, it measures. Hence the temptation: if the bank measured, the buyer is covered.
The Superior Tribunal de Justiça (STJ, Brazil's superior court for federal law), the court that unifies the interpretation of federal statutes, examined that conclusion in REsp 1,163,228/AM (special appeal), decided in 2012. In a case under the Housing Finance System (Sistema Financeiro da Habitação), it held that a bank acting as financial agent "in the strict sense" has no standing to be sued over construction defects in the financed building. Its responsibility "concerns only compliance with the financing contract." And oversight of the works is justified by the bank's interest "in the loan being used for the purposes described in the loan contract."
The ruling itself makes an exception for a bank that carries out federal housing policy for low-income buyers, which may be liable, and it sent the question to the merits of the case to determine which role the bank played. It stands for what a superior court has said in one case, not as a rule for every financing.
As Valida reads it, the bank's measurement is useful data, with a declared purpose. The independent one does not replace it. It confronts it. If the two coincide, the number gains weight. If they diverge, the divergent item tells the story.
Four players measure the same project. Reading the number without knowing the question is the original error.
| Who measures | What for | Basis | What the number does not guarantee |
|---|---|---|---|
| Developer | Report to the committee on the works against the deadline and, under the segregated estate, the resources | Law 4,591, arts. 43, I, and 31-D, IV | Impartiality: it is the word of the interested party, even if signed by a qualified professional |
| Financing bank | Release the loan and protect the credit | STJ, REsp 1,163,228/AM | Quality of the works and the buyer's position |
| Representatives' committee | Oversee progress and design (contracted works); examine statements of receipts and expenses (administration) | Law 4,591, arts. 55, §3, and 61, "a" | Technical capacity of its own |
| Inspector appointed by the committee or the bank | Monitor the segregated estate, with free access | Law 4,591, arts. 31-C and 31-D, VII | The result of the works: the appointment does not transfer responsibility (art. 31-C, §1) |
An illustrative situation, with invented numbers and no relation to any real project. A hypothetical development has a budget of R$ 10,000,000. The report to the investor, the notice to the buyers and the request to the bank all repeat the percentage calculated at the office. The field measurement redoes the calculation, item by item, on the day of the visit.
| Service group | Weight in cost | Declared | Measured | Declared contribution (points) | Measured contribution (points) |
|---|---|---|---|---|---|
| Foundation and retaining | 12% | 100% | 100% | 12.0 | 12.0 |
| Structure | 22% | 80% | 70% | 17.6 | 15.4 |
| Masonry and partitions | 14% | 60% | 50% | 8.4 | 7.0 |
| Embedded installations | 12% | 55% | 40% | 6.6 | 4.8 |
| Waterproofing | 4% | 90% | 90% | 3.6 | 3.6 |
| Coverings and finishes | 20% | 20% | 10% | 4.0 | 2.0 |
| Window frames and fixtures | 8% | 10% | 0% | 0.8 | 0.0 |
| Site, local administration and designs | 8% | 70% | 60% | 5.6 | 4.8 |
| Total | 100% | 58.6 | 49.6 |
The difference is 9.0 percentage points: R$ 900,000 of the budget (9.0% × R$ 10,000,000). It breaks down as follows: structure, 2.2 points (R$ 220,000); coverings, 2.0 (R$ 200,000); embedded installations, 1.8 (R$ 180,000); masonry, 1.4 (R$ 140,000); window frames and site, 0.8 each (R$ 80,000 each). Foundation and waterproofing match.
No single item explains the difference; the largest accounts for about a quarter. The error is spread out, and the table points to no culprit: it shows that two instruments produced two numbers.
The finding has two readings. The financial one: if the bank released funds based on 58.6%, the money is 9 points ahead of the works. The one about the deadline, which has contractual consequences. Art. 43-A of Law 4,591 tolerates delivery up to 180 calendar days after the scheduled date, without termination or penalty, if agreed "clearly and prominently." And art. 43, VI, allows the judge to notify a developer who halts the works for more than 30 days without just cause, or "excessively slows their progress." If the notice is ignored, an absolute majority of the buyers may remove the developer. Knowing whether progress is normal requires a dated percentage. The office one proves nothing, for either side.
Two lines of the table call for another method. Embedded installations and waterproofing are hidden services: once finished, they vanish behind the wall or under the floor, like the filling of a closed cake. At today's visit, the eye arrives too late. The proof becomes contemporaneous evidence, the document from the day the service was still visible: a dated photo, an invoice, a note in the logbook.
The central record is the site logbook (diário de obra), the ship's log of the construction site, which the Conselho Federal de Engenharia e Agronomia (Confea, Federal Council of Engineering and Agronomy) calls the Livro de Ordem (Order Book). Confea Resolution 1,094/2017 requires the technical manager to record in it "the current stage of development of the project on the day of each technical visit," the start and completion dates of each phase and the interruptions, with the reasons.
The recitals make a rare confession: the traditional instruments "verify the authorship of the designs and the existence of a technical manager," but "cannot verify the professional's actual follow-up." The ART, Anotação de Responsabilidade Técnica (Technical Responsibility Annotation), which Law 6,496/1977 requires of every construction contract, "defines for legal purposes the technical managers." It is the signature on the certificate. It does not prove that the doctor examined the patient.
A caveat of precision: the Confea page records the temporary suspension of §2 of art. 1, which tied the Livro de Ordem to the technical-record certificate (the document that records the works a professional has done). Saying that the book "is mandatory on every project" oversimplifies.
As Valida reads it, each percentage comes from one of three steps of evidence, and the opinion says which. The hierarchy is method, not norm.
| Step | What it is | Example | How it enters the opinion |
|---|---|---|---|
| Direct observation | What is seen on the day of the visit | Exposed structure, installed window frames | Measured, with date and photo |
| Contemporaneous document | Paper produced when the service was still visible | Livro de Ordem, invoice, dated photo | Measured by document, with the source |
| Statement | A claim without backing | "All the piping has already been run" | Assumed, until proof appears |
A statement is not a lie; it is a claim waiting for backing. What takes away the percentage's ability to be checked is mixing the three steps into a single number.
Under contracted works (empreitada, where the contractor does the work for an agreed price), measuring has legal effect. Art. 614 of the Civil Code allows the contractor to demand payment "in proportion to the work executed," and the paragraphs close the circle. "Everything that has been paid is presumed verified" (§1). And "what has been measured is presumed verified if, within thirty days of the measurement, defects or flaws are not reported by the owner of the work or by whoever is in charge of overseeing it" (§2).
In plain English: silence counts as acceptance. The measurement nobody wants to make has, here, a deadline for being made.
The presumption has edges. It applies between the owner of the work and the contractor, and does not by itself settle the situation of someone who bought a unit. Nor does it erase art. 618: a contractor of materials and execution answers for 5 years "for the soundness and safety of the work," and the owner loses the right if it does not act within 180 days of the defect appearing. The hidden service poorly checked today is tomorrow's candidate for a defect.
In government contracts, measurement is a matter of law. In private development, those rules are not binding; they serve as a yardstick of good practice.
Law 14,133/2021, the procurement law, lists among the cases of overbilling (damage to public money) the "measurement of quantities greater than those actually executed" (art. 6, LVII, "a"). Art. 117 requires contract execution to be monitored by contract inspectors, allows third parties to be hired to assist them and obliges the inspector to note "in a dedicated record all occurrences." Decree 7,983/2013, for works paid with federal funds, requires a schedule "with the complete physical specification of the stages needed for measurement" (art. 12).
The inspection manual of the Departamento Nacional de Obras Contra as Secas (DNOCS, National Department of Works Against Droughts), a federal agency, asks that the measurement be accompanied by "the calculation record of the quantities gauged and the photographic record of the services executed." And it sets down a rule that holds outside the public sector: "Whoever gauges the services does not make the payment."
The Tribunal de Contas da União (TCU, Federal Court of Accounts), in its 2014 recommendations for public building works, still referring to the old Law 8,666/1993, states a principle: only services "actually executed by the contractor and approved by the inspection" are measured, in "strict correspondence with the design." Measure what was done, against the design, with criteria agreed beforehand.
A methodological limit remains: measuring a percentage does not measure quality, conformity to the design or soundness. A finished wall may be off the design. The measurement says what is done, on the date. That is a lot, and it is not everything.
The buyers' representatives' committee. A developer who sells at a fixed term and price must send it, every 3 months, the statement of the state of the works against the deadline (Law 4,591, art. 43, I). Under the segregated estate, the statement also compares the works with the resources received and is signed by qualified professionals (art. 31-D, IV).
Not necessarily. The bank oversees to release the loan and protect the credit. In REsp 1,163,228/AM, the STJ held that a bank acting as financial agent in the strict sense has no standing to be sued over construction defects, with an exception for one that carries out federal housing policy. The bank's number is useful data, not a certification to the buyer.
Yes, when the project is under the segregated estate, through the representatives' committee. Art. 31-C allows the committee and the financing bank to appoint, at their own expense, someone to oversee the segregated estate, with free access to the works and the books. Whoever appoints does not assume responsibility for the works or the deadline (§1). Outside the segregated estate, access depends on the contract.
The office percentage estimates from spreadsheets, purchases and information from the team. The field measurement walks through each service on site and records the date, the method and who measured. In public works, the measurement comes with the calculation record and the photographic record attached, as the DNOCS manual asks. Private construction can ask for the same.
Under contracted works, yes. Under art. 614, §2, of the Civil Code, what has been measured is presumed verified if, within 30 days, the owner of the work or whoever oversees it does not report defects or flaws. The rule applies between owner and contractor, does not by itself settle the situation of the unit buyer and does not erase the 5-year guarantee of art. 618.
Before the next quarterly report, the useful question is not how much the works advanced. It is on what date, by what method and by whom. The number nobody wants to measure is the one that most needs a date.
