Brazilian justice decides that buildings can prohibit rentals via Airbnb

RIO DE JANEIRO, BRAZIL – The Brazilian Justice decided Tuesday that residential condominiums can prohibit residents from renting their properties through digital platforms such as Airbnb, in a decision that could set jurisprudence for similar cases.

The ruling goes back to a case that arose in 2019 when neighbors of a building in the southern Brazilian city of Porto Alegre filed legal action against this type of rental under the argument that they were against the rules set out in the condominium convention.

In an unprecedented trial, the Fourth Chamber of the Superior Court of Justice (STJ) established by 3 votes to 1 that the condominium community can indeed prohibit an owner from renting his property through the app, which could determine the future of Airbnb in the country.

The court analyzed the process in October 2019, when the instructor of the case, Judge Luís Felipe Salomão, voted against the ban under the argument that it would violate the right to property guaranteed in the Constitution.

This Tuesday, Salomão advocated that such restrictions oppose the advances of modern society and that rentals through Airbnb and other virtual platforms stimulate the rights to free competition.

However, the three remaining magistrates who participated in the trial diverged from the instructor of the case, considering that the owners do rent not only their units but also all the building’s common areas, such as swimming pools, gyms, and party rooms.

In this sense, Judge Raul Araújo defended the autonomy of the internal regulations of residential buildings. He considered that the rental of entire units or only rooms poses a risk to the safety of the other residents.

Araújo’s vote was joined by Judge Isabel Gallotti, who pointed out that in a condominium, “there is a greater concern with the safety and activities of the building’s employees that may be impacted.”

For his part, the magistrate Antonio Carlos Ferreira likewise voted in favor of neighborhood autonomy. However, he pondered that the trial is not about the legality of Airbnb but about the possibility that the community of neighbors vetoes or not the rentals through that platform.

“The convention (of the building) has powers to regulate and veto that kind of non-residential use of the property,” he sentenced.

Airbnb has been operating in Brazil since 2012 and has since gained ground in the local market, even though its numbers in the country remain rather more modest when compared to the exorbitant figures recorded in some major European cities.