STJ decision involving Airbnb should not affect year-end rents – Legislation – Tecnoblog

The Superior Court of Justice (STJ) ruled last week that condominiums could ban rentals lasting less than 90 days, considered the maximum term for a “short season lease”. But lawyers heard by Techblog say the measure should not affect year-end leases. In the long term, however, the opinion of the STJ can affect — and a lot — Airbnb’s activity in Brazil.

Airbnb/Pexels/cottonbro
STJ decision says that condominiums may prohibit leases of up to 90 days; decision may impact Airbnb in the long term (Image: cottonbro/Pexels)

Last week, the STJ judged the appeal of an owner of a condominium house in Londrina, Paraná, which was available for lease on Airbnb. In an assembly of joint owners, it was decided by two-thirds of the residents that it was prohibited to rent properties within the land, which led the owner of the house to sue the courts to seek the annulment of the decision.

The petitioner won a first instance victory. But the decision was overturned by a judge of the Court of Justice of Paraná. The owner of the house then filed a new appeal with the STJ, but the court rejected the request.

STJ decision may affect Airbnb’s operation in Brazil

Lawyers heard by Techblog they claim that, as it is a decision that concerns the constitutional right to property, the issue can be decided by the Federal Supreme Court (STF).

According to Marcos Lopes Prado, a lawyer specializing in real estate law at Cescon Barrieu, the STJ’s decision is only for the condominium and the resident involved in the case, and should not affect either the Airbnb leases made for the end of the year or the model of platform rental in the near future. “For Airbnb to cease operating, there should be a legislative change,” says Prado.

However, the STJ’s decision in favor of the condominium allows each assembly of residents to determine whether it is prohibited to rent properties via Airbnb.

It is possible that the platform will encounter difficulties if more cases of this type have the same outcome: if the STJ maintains its favorable opinion to the condominiums, a jurisprudence can be formed. If more similar decisions occur, the court fails to judge the merits one by one and forms a uniform consensus on this type of occurrence.

It is the second time that the STJ has decided in favor of a ban on rentals of up to 90 days in condominiums. In the first opinion, the 4th Panel of the higher court ruled against a mother and her son, who were prohibited from offering their apartment on Airbnb by decision of the majority of the building’s residents.

Lawsuits in the STJ have the participation of Airbnb lawyers

Superior Court of Justice - STJ.
Superior Court of Justice – STJ. (Image: Disclosure/STJ)

In the two lawsuits filed by unit owners, Airbnb filed a team of lawyers to accompany the process, in the position of legal assistant. This only happens if an interested third party is able to prove to the court the impact of the measure on its economic activity; the processes are important for the platform’s performance in Brazil.

Short term rentals are allowed on Airbnb and are the best option for renting properties without paying expensive. In addition to rental, the application also offers tours, experiences and more attractions that are part of the place where the guest wants to live.

Attorney Vicente Coni Jr states that there is also a difference between a rental service and a hosting service:

That’s another legal discussion: the difference between leasing and hosting. When we talk about hotels, we think about laundry services, housekeeping, breakfast, or even packages with gastronomic experiences. These would be benefits of hosting and not leasing. And this ends up bumping into the way we handle leases in commercial and residential buildings, such as condominiums.

Condominiums claim that rent threatens coexistence

One of the main points considered by the STJ is the condominiums’ argument that short-term rentals allow the entry of “strange people” and that they generate insecurity and embarrassment to the rest of the residents.

“The right to property that Airbnb evokes seems to prevail for individual houses outside the so-called Edilicios Condominiums or Subdivisions with Controlled Access”, says Marcos Lopes Prado. “But when we talk about these spaces, the property right is no longer absolute, it is a right that needs to harmonize and coexist with other rights, such as the collective norms of coexistence of the collective”.

According to Prado, the STJ jurisprudence on Airbnb rents should take years to be formed:

“We know that this situation will repeat itself. If there is a ban [por condomínios], the unit owners can seek the judiciary. If it is repetitive, this path will be taken by the STJ, but I believe it will take years to consolidate.”

In Congress, there is a bill that prohibits leases made by Airbnb inside condominiums, whether short or long term. The proposal is authored by senator Angelo Coronel (PSD-BA) and, for the time being, is stopped at the Constitution and Justice Commission (CCJ) of the Federal Senate.

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