Airbnb Rental Cannot be Banned by Condominium, Says Superior Court Judge

RIO DE JANEIRO, BRAZIL – Judge Luis Felipe Solomon, of the Superior Court of Justice (STJ), voted yesterday, October 10th, to the effect that the lease of real estate or rooms by means of apps such as Airnnb cannot be prohibited by residential condominiums, as long as it is not a commercial activity.

Solomon is rapporteur for a special appeal on the matter. Reading his vote at the STJ Fourth Panel session, where the matter is being judged, he stated that he considers “the practice of depriving the condominium member of the regular exercise of the right to property in its economic exploitation” to be illegal. The trial was suspended by a request for a review (more time for analysis) by Judge Raul Araújo.

In order to draw a conclusion, Solomon assessed that, most of the time, leases via Airbnb cannot be regarded as commercial activities, in which case they may be prohibited by condominiums, but rather a mere “regular use” of the right to property, a seasonal tenancy for residential purposes, as provided in the Law on Leases (8,245/1991).

The justice added that it has been proven that the use of virtual rental platforms does not in itself represent a threat to the well-being or safety of other condominium members, which in theory could give rise to some kind of judicial intervention.

Nevertheless, Solomon acknowledged that “there is a need for regulation, which is the Parliament’s, and not ours”.

This position was reached in the judgment of a special appeal by an owner of two apartments in Porto Alegre. The woman was sued by the condominium, which claimed that she engaged in commercial activity similar to that of a hostel, which is prohibited by the condominium convention.

To support the argument, the condominium, which had achieved a favorable decision in the court of appeals, argued that the owner had placed partitions in the apartments, in order to increase the number of guests, as well as offering services such as laundry and wifi, which would characterize the apartment use as if it were a hostel.

Felipe Evaristo, Airbnb’s lawyer, who took part in the trial as a defense assistant, reiterated the argument, saying it is “indisputable” that the lease through a virtual platform is for residential use and not for commercial hosting.

Source: Agência Brasil