Home » Business » STJ’s decision on Airbnb is not yet final, lawyers say

STJ’s decision on Airbnb is not yet final, lawyers say

The Superior Court of Justice’s decision, by majority vote, caused repercussions that Airbnb – paid accommodation for a short period of time and under a contract not regulated by law – may be prohibited by a residential building. Attorneys who are experts in the matter understand that the decision should not yet be applied to all cases.

STJ decision refers to a concrete case of condominium in Porto Alegre

For the lawyer Rodrigo Ferrari Iaquinta, coordinator of the Real Estate Law department at BNZ Advogados, the decision is controversial, especially if we analyze the fact that in the winning vote of Minister Raul Araújo, a residential property would be one that is not characterized by eventuality and transience. “This argument clashes, in a way, with the definition of rental per season provided for in Law 8,245 / 1991 (Tenancy Law)”, he clarifies.

According to him, despite the result, it is clear that the understanding is not yet definitive and of unlimited scope to every analogous case. “In any case, there is no doubt that leases via Airbnb are reflections of a modern economy and that the need for a judicial pronouncement on the subject demonstrates legislative inertia. The comparison, even, made by the reporting minister (unsuccessful vote) with Uber looks very happy to me, “says Iaquinta.

In addition, says the expert, “the need to adapt condominium conventions is reinforced in order to make criteria on the subject more objective, making condominium life as peaceful as possible.”

Julian Filareto, a lawyer specializing in Real Estate and Consumer Law at WZ Advogados, says the decision is important because it defined the hosting segment to be lawful through new business models, such as Airbnb, encouraging innovation, free competition and, as a result, , more attractive costs to consumers.

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“As Minister Luiz Felipe Salomão pointed out at the trial, the amount of business involving these digital platforms is impacting, adding billions to the Brazilian GDP, so that such activity generates a relevant impact for the structuring of our economy. However, in the majority understanding of the 4th Class, this modality does not fit as a typical or seasonal rental, evidently having a commercial character, so that it cannot be exercised in condominiums that, in its convention, stipulate the strictly residential nature of the building “, he explains.

According to the lawyer, the issue still depends on regulation by the legislator in order to typify the nature of the services offered by applications or intermediation platforms and their extension. “But with this decision it becomes clearer that it will be up to the condominium, by convention, to establish the residential or commercial destination of the building, opening up the possibility that businesses like Airbnb can develop”, he evaluates.

According to the lawyer Wilson Sales Belchior, a partner at RMS Advogados, a distinction must be made between the intermediation of services that is carried out by a shared economy company over the internet and the legal treatment given to seasonal rental contracts and accommodation. “It is essential, in this context, to consider the particularities of the relationship established through the platform, the exercise of property rights and the rules of the Condominium Convention. This is because this is a subject that will still cause judicialization of conflicts until the regulation of services that emerge from new technologies “, he says.

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In order to the lawyer André Luiz Junqueira, member of OAB-RJ Tourism Commission, OAB-RJ Real Estate Law Commission and author of the book “Condominiums: Rights and Duties”, “the decision is an important precedent because, although it is not binding [não é obrigatório que todos os juízes do país sigam], it is the first time that the Superior Court has talked about the topic “.

For ten years I have advocated the thesis that, depending on the way in which the tenant rents or leases his apartment, it is no longer a common rental, a residential activity, but a non-residential activity, of accommodation.

It is worth mentioning that, according to the lawyer, there was no ban on the use of applications. “Applications are not forbidden, there is no condominium reason to restrict the way in which the owner negotiates his property “.The activity itself, similar to accommodation, is that it can be prohibited by the condominium “, he adds.

In a note Airbnb stated that “the ministers pointed out that, in the specific case of the trial, the conduct of the owner of the property, which transformed her home into a hostel, not encouraged by the platform, mischaracterizes the activity of the host community.” Ministers stressed that leasing via Airbnb is legal and does not constitute a hotel activity, and stated that this decision does not determine the prohibition of activity in condominiums in general. Prohibiting or restricting seasonal rentals violates the property right of those who rent their property regularly. “

REsp 1.819.075

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