As a way to seek a safer and more isolated refuge during the pandemic, Brazilian and foreign tourists resorted to renting houses or apartments, for short periods, using digital platforms such as Airbnb. There is also a huge demand from owners interested in occupying an idle property and from tourists in search of comfort and convenience.
To provide more security for these two agents, Brazilian legislation regulated the relationship, maintaining, however, certain contractual freedom between tenants and owners, as explained in the explanatory memorandum of the current Leases Law (Law No. 8,245/1991).
The Tenancy Law, despite having been enacted in 1991, is still the rule that regulates the leasing of urban properties, including seasonal leasing as a whole, including condominiums. But notice that even before the Leases Law, seasonal leases were already provided for and guaranteed in our highest law, the Federal Constitution, and also in the Civil Code, as well as, in the end, by the jurisprudence that corroborates all these diplomas.
“There is no doubt about the legality of seasonal rentals, even in condominiums. It is a figure expressly provided for in the Lease Law”, says lawyer Paulo Ruggiero Fucci, a partner at Fucci Advogados.
In times of economic crisis, such as the one triggered by the COVID-19 pandemic, vacation rentals have even become an option for homeowners to generate additional income.
Lawyer Gustavo Campos Maurício, from the Ruy de Mello Miller office, recalls that contracting seasonal rentals is legal, “provided that it is governed by the Leases Law and that the requirements established by it are fulfilled”.
It is worth remembering that not only the owner can make his property available for rent for the season. As provided for in the Civil Code, the owner, the usufructuary, the borrower, the trustee, the father and the mother as legal administrators of the assets of minor or incapable children, the lessee himself (provided that authorized by the lessor), the estate represented by the executor, the trustee, the condominium represented by the trustee and the joint-owner who manages a common thing without opposition.
A recent decision by the Court of Justice of the State of Alagoas (process n. 0700807-47.2019.8.02.0077) reiterated that seasonal rentals are allowed. Another decision of the Court of Justice of the Federal District and Territories (process n. 0005572-71.2017.8.25.0000) also reiterated that the advertisement of properties on online platforms does not transform the rental into a hotel activity. It is important to point out that commercial hotel activity is regulated by the General Tourism Law (art. 23) and encompasses, in addition to the availability of space, the provision of services, and other activities.
In the same vein, a judgment by the Court of Justice of the State of Rio de Janeiro (process n. 0107553-45.2016.8.19.0001) determined that the condominium cannot prohibit short-term rental, as the Tenancy Law also recognizes that the Seasonal rental is for residential purposes.
This does not mean, however, that isolated cases of non-compliance do not exist. A recent judgment by the Superior Court of Justice (STJ) ruled in favor of the condominium, due to the owner's conduct, which, by making changes to the property and offering additional services to its tenants, made the lease offered to resemble the activity of accommodation.
“There was no general repercussion in these decisions to prohibit or guarantee short-term rentals to all condominiums and owners, consequently”, explains Marcos Poliszezuk, founding partner of Poliszezuk Advogados.
It is important to note that the Court of Justice of the State of São Paulo (process n. 1017222-61.2018.8.26.0477) ordered a condominium to pay compensation for moral damages to a guest who was prevented from entering a property rented through a platform. The decision noted that vacation rentals are permitted under the Leases Act.
In another decision, also by the Court of Justice of the State of São Paulo (process n. 1036147-43.2016.8.26.0100), a condominium assembly that tried to prohibit rentals via Airbnb was annulled based on the constitutional guarantee of the owner's right to use your property.
Based on these decisions, the condominium cannot prevent the lessor from making its properties available for lease, including for the season.