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There has never been a lack of reasons for disputes in condominiums, but the emergence of virtual property sharing platforms, such as Airbnb, has added a little more fuel to this fire. The legal, political and social issues that arise in this scenario are countless, but in this article the analysis will be restricted to a specific one: whether it is legal or not, in view of current Brazilian legislation, for residential condominiums to prohibit the sharing of properties through this platform, or similar.
So far, the word “sharing” has been used because the discussion about the nature of the legal relationship established between the individual who makes their property available on the platform and the person who completes the contract is crucial: would it be a rental or accommodation? This is the main discussion that permeates the various processes that are spreading across Brazil, as there are different legal consequences for one situation or another.
Those who maintain the illegality of B2B Lead property sharing on these platforms argue that it is accommodation, not rental. Therefore, the condominium owner's activity would have a commercial bias, being subject to Law 11,771/2008, which regulates the National Tourism Policy. According to article 21 of the law, a business company, simple company, individual entrepreneur or autonomous social service that provides paid tourist services and that carries out economic activities related to the tourism production chain is considered to be a tourist service provider. Among the activities listed in this article, the one that is most interesting here is “accommodation facilities”.
The definition of accommodation facilities is found in article 23 of the same law. These are enterprises or establishments “intended to provide temporary accommodation services, offered in individual frequency units and for the exclusive use of the guest, as well as other services necessary to users, called hosting services, through the adoption of a contractual, tacit instrument or express, and daily charge”. According to members of the group that supports the illegality of sharing properties in residential buildings through Airbnb, this would be an economic activity that falls within the definition of accommodation, and not a simple rental.
This economic activity called “lodging facilities” covers not only traditional hotels, but also enterprises that use residential condominiums to “provide accommodation services in furnished and equipped units, as well as other services offered to guests” (article 23, paragraph 1 of the Law 11,771/08). According to article 24, all accommodation facilities must have an operating license (item I); in the case of “hotel condominium, flat, flat-hotel, hotel-residence, loft, apart-hotel, apart-service condominium, condohotel and similar”, a construction license or certificate of construction completion is also required, in addition to several other documents, such as a condominium agreement that provides for the provision of hotel services to users, in an associative system called “ rental pool ” (section II). Defenders of this first trend consider that the availability of residential building units through platforms such as Airbnb can only occur if there is an operating license and a provision for the provision of hotel services in the condominium agreement.
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發表於 2024-3-16 14:36:20