Local Accommodation in Fractions Intended for Housing – STJ Ruling 03/22/2022
In order to determine whether the use of an autonomous fraction (intended for housing) to operate a Local Accommodation (AL) violates the constitutive title of the horizontal property, the Supreme Court of Justice issued a standardizing ruling on March 22, 2022. of jurisprudence that has been considered controversial and controversial.
This decision states that “in the horizontal property regime, the indication in the constitutive title that a certain fraction is intended for housing must be interpreted as meaning that local accommodation is not permitted.”
Regarding this issue, it is important to note that under the terms of article 1418, no. 2, a) of the Civil Code, the constitutive title of an autonomous fraction contains, among other elements, a mention of the purpose for which that fraction is intended. This purpose may be residential or commercial, and must be respected as such, and it is prohibited to use the fraction for a purpose other than that stated in the constitutive title, as prescribed in article 1422, no. 2, c) of the Civil Code.
Thus, the discussion in question actually starts from a first fundamental question: does the activity of Local Accommodation integrate an act of commerce or the concept of housing?
Doctrine and jurisprudence are not unanimous on this point, with arguments supporting different interpretations.
It was understood in this ruling of the Supreme Court of Justice that from the point of view of the destination of the thing and its respective socio-economic condominium environment, a housing experience is different from its use in Local Accommodation.
In fact, it should be noted that in a Local Accommodation there is a rotation, randomness and temporary permanence of users, effectively incompatible with what occurs in a fraction intended for housing, which will always include a degree of certainty, continuity, security and familiarity absolutely distinct.
Nor is it possible to compare a user of Local Accommodation to a resident of an autonomous unit. Local accommodations are mostly sought after by people who are on vacation, looking to relax and abstract themselves from their daily lives, as any vacation presupposes. Unlike a normal resident, he goes to his apartment as part of his daily life, as part of his routine, looking for peace and quiet that is often incompatible with the relaxation, excitement and celebration of the users of a Local Accommodation.
On the other hand, it is also important to note that Law No. 62/2018 provides for the possibility for the condominium assembly to oppose, through deliberation, the exercise of Local Accommodation activity in autonomous units, based on the practice of acts that disturb the normal use of the building and acts that harm the rest of the condominium owners. This deliberation, moreover, could be the basis for the cancellation of Local Accommodation by the municipality.
Now, given that this protection exists in Law No. 62/2018, it seems precisely difficult to understand the STJ's decision, a decision based on the defense of condominium owners, who in truth, as far as the law states, were already protected by this means. The spirit of Law No. 62/2018, in fact, seems to result in the legislator's intention not to completely and from the outset prevent Local Accommodation in buildings on horizontal property, enshrining, however, to “counterbalance”, the admissibility of condominium owners' reaction to the Local Accommodation in circumstances that are harmful to them.
It is clear from this Ruling that standardizes jurisprudence that the installation of Local Accommodation in an autonomous fraction that, in accordance with the constitutive title of the horizontal property and in the absence of other legal elements, is intended for housing is prohibited.
Finally, it is worth talking about the applicability of this Judgment. It should be noted from the outset that the STJ's decision does not have the immediate and direct effect of changing the legislation on Local Accommodation, however, it will necessarily have an impact on the decisions that the courts will take regarding this topic, since An understanding different from that set out in this Judgment is not permitted. Furthermore, under the terms of art. 629, no. 2, subparagraphs c) and d) and art. 672, no. 1, subparagraph c) of the Code of Civil Procedure, an appeal will not be admissible in disputes in which the same fundamental question of law is at stake.
However, it should also be noted that this decision of the STJ does not prevent the constitutive title of the horizontal property and the condominium regulations from being subject to change, by agreement of all condominium owners, in order to allow Local Accommodation. *
* This article is for informational purposes only and does not preclude the need for advice from a lawyer.