4/5/2021
A recent decision of the Brazilian Superior Court of Justice (STJ), which determined that a residential condominium convention may prohibit unit owners from renting their properties through Airbnb or other similar digital platforms, highlighted an important discussion about how the law should regulate and adapt to technological innovations, in order to guarantee a favorable legal environment for the market and involved stakeholders.
The decision determined that a rental made through digital platforms is considered as an atypical accommodation contract, not comparable to an accommodation offered by hotel companies, as it does not offer a professional structure, or the season lease, set forth by Brazilian law, as it represents a high turnover rent and, in some cases, different people share the same property. The lack of clarity in the decision and consensus among experts on the subject and on the differences between the season lease and the accommodation contract made through digital platforms results in a scenario of legal uncertainty that can have a negative impact on the use and development of such services.
In the case analyzed by the Superior Court, the condominium decided to prohibit the rental of units through digital platforms, as the practice had caused problems to the condominium and its residents. In this context, an important discussion arises as to whether such prohibition could represent an offense to property right. The owner has the right to dispose of his residential unit, including the decision to lease, for a short or long term, but such right finds its limits in the destination of the property, which cannot be abusive and shall respect the condominium convention rules. Thus, it is important that each condominium establishes clear rules about the matter, deciding on the possibility of unit owners renting their properties through digital platforms. If there is no clear rule in the condominium convention a prohibition could be considered illegal and an offense to property right. In that regard, the São Paulo Court of Justice (TJSP) ruled, in 2017, to prohibit the rental through the Airbnb platform based on the fact that the condominium convention established that the condominium units were destinated exclusively for residential use.
The result of the Superior Court decision is not definitive and has no general repercussion, that is, it will not be applied to all similar cases, and the discussion on the topic may still have important developments, highlighting the essential need for specific regulation on the topic. Meanwhile, the decision indicates the importance of condominiums to establish clear rules and criteria established in the convention, according to the desire of each condominium to allow or prohibit the rental of units through digital platforms, in order to avoid conflicts between the different owners and tenants.
Coauthors: Felipe Castro and Manuela Genovese
