Responsible hosting in Brazil
We’ve put together this article to help hosts on Airbnb become familiar with hosting responsibilities, and to provide a general overview of different laws, regulations, and best practices that may affect hosts. You’re required to follow our guidelines, like our Hosting Standards, and to make sure that you follow the laws and other rules that apply to your specific circumstances and locale.
We recommend that you do your own research as this article isn’t comprehensive, and doesn’t constitute legal or tax advice. Also, as we don’t update this article in real time, please check each source and make sure that the information provided hasn’t recently changed.
Real estate rental
Airbnb is an accommodation platform that connects travelers to people or companies that have space available for rent. In Brazil, renting property is a practice due to the full exercise of the right of ownership, which is guaranteed constitutionally. The use of Airbnb for this activity, however, like everything that is considered new, can raise doubts–including in condominium matters. So we have gathered the information below so that you can better understand how Brazilian law protects your right to rent your property.
Brazilian law guarantees your right to rent your property
In Brazilian legislation, article 5 (II) of the Federal Constitution stipulates that "No one shall be obliged to do or fail to do anything but by virtue of law". The XXII item of that same article establishes that "the right of ownership is guaranteed".
Therefore, Brazilians and foreigners residing in Brazil have the right to make available their property for rent, and this right can only be prohibited or limited by means of a federal law. Today there is no federal law preventing or limiting your right to rent real estate, per season (up to 90 days) or not.
There are also federal laws in Brazil that guarantee this right.
Article 1,228 of Brazilian Civil code, for example, establishes that the owners can "use, enjoy and dispose" of their property. And article 48 of Law No. 8.245/1991, which is the specific law on renting of urban buildings, expressly allows you to offer your property for rental (for periods above 90 days), and also for rental per season (those intended for temporary permanence of the tenant "for leisure practice, courses, health treatment, works on its own property", among other purposes). The law does not define any minimum period for the rental per season, only the maximum period of 90 days.
The laws that discipline condominiums also guarantee your right to rent your accommodations, by season or not, by apps or any other means. Art. 1,314 of Brazilian Civil code says that "Each owner can use the property according to its destination", while art. 1,335 acknowledges that "using, enjoying and freely disposing of its units" are the rights of the owner insert to the condominium environment. Law No. 4.591/1964, which deals specifically with condominiums in buildings, also reinforces that "each owner has the right to use and enjoy, exclusively, of its autonomous unit, according to its conveniences and interests", and should observe the norms of good relationship within a neighborhood.
Expert opinion and the protection of this right by the courts
In the light of the aforementioned legislation, condominiums may not prevent or limit your right to rent your accommodation. Any decision in this regard is unlawful, whether taken by the condominium administrator in person or the condominium assembly.
Since it is a recent modality to connect people, some hosts or condominiums sometimes wonder about the legislation applicable to rentals made through Airbnb’s platform (and others that also announce properties for rent). In this regard, we contacted specialists to bring clarification on the subject.
Dr. Jorge Cesa, PhD in Law from the University of São Paulo and author of several books and publications on Civil Law, confirms that "the condominiums cannot seal the rent of the autonomous unit, object of the right of ownership of others. Firstly, there is an explicit legal provision in the Tenancy Law. Secondly, the condominium has no competence to regulate such matters." He also adds that any conduct of the condominium tending to prohibit or limit the rights to rent owner’s property "may instill abuse of rights and generate liability to indemnify". You can download this PDF to consult Dr. Jorge Cesa's opinion.
Dr. Cristiano de Sousa Oliveira also manifests in the same direction. He is a condominium legal adviser, member of the Condominium Law Commission of São Paulo’s Bar Association (OAB/SP) and author of the book I Am A Condominium Administrator. Now what? Reflections on the Civil Code and the Condominium Life in 11 Lessons. As he clarifies, it is not enough that the decisions of the condominiums are legitimate (ex: approved in accordance with the necessary formal procedures); they must also be compatible with the legislation. Therefore, "the condominium cannot impose minimum mandatory period of stay for tenants", and condominiums cannot limit the exercise of property rights, restricting the rental per season via the Airbnb platform, "such subject being only subject to federal law." You can download this PDF to consult Dr. Cristiano de Sousa Oliveira's opinion.
Decisions from courts of Brazil
Below, you can download some important decisions from various courts of Brazil that protect your right to rent properties by season, including through the Airbnb platform. There are other similar decisions, and these are just examples of how you can seek your rights if your condo tries to ban you from renting your property or restricting guest access.
- TJSP case no. 2034446-39.2016.8.26.0000: The São Paulo Court has made it clear that the condominium cannot change the convention to prohibit the host from renting an apartment through Airbnb. This ruling confirmed that the Constitution protects the ownership of the apartment and the right of the owner to use and exploit it.
- TJSC case no. 0300652-89.2015.8.24.0125: The Court of Santa Catarina found the condominium trying to prohibit the host from renting his apartment unconstitutional. According to the judgment, the attempt to prohibit rent by Airbnb is a serious offense to the right that the Constitution grants the owner to use and rent their property. The court also acknowledged that it is unequal and unfair to prohibit rental by Airbnb but to allow neighbors to receive family and friends for short periods.
- TJDFT case no. 0005572-71.2017.8.25.0000: The Federal District Court held that the condominium cannot convene an assembly to prohibit listings of units on Airbnb, as such a prohibition would be unreasonable and disproportionate. According to the court, the Constitution guarantees the right of homeowners to use the apartment and the Rental Law allows for short term rentals. Also, advertising on sites like Airbnb does not turn a rental into hotel activity.
- TJSC case no. 0000659-83.2013.8.24.0139: This decision annulled a meeting that attempted to prohibit rental by season in the condominium. It is acknowledged that the host's right to own his apartment is a fundamental right expressly guaranteed in the Constitution. It is also said that there is no plausible reason for the condominium to deprive owners of their constitutional right to rent their apartment.
- TJRJ case no. 0107553-45.2016.8.19.0001: The Rio de Janeiro Court prevented the condominium from prohibiting short-term rentals under the pretext that the host would be misrepresenting the residential purpose of the condominium. According to the court, the Rental Act recognizes that seasonal rentals are for residential purposes and therefore there is no reason to prohibit them.
- TJRJ case no. 0064727-38.2015.8.19.0001: In another decision of Rio de Janeiro, it was confirmed that the condominium cannot prohibit rental by season. According to the judgment, the Rental Law allows for a rental by season and does not set a minimum term. The decision recognizes that these rentals, even for the short term, are residential (like ordinary rentals) and therefore there is no reason for the condominium to prohibit them.
- TJPE case no. 0010415-72.2012.8.17.0810: This decision of Pernambuco also understood that the condominium cannot prohibit the host from advertising an apartment through Airbnb. It acknowledges that rental by Airbnb does not threaten the security of the condo, and is even safer than regular rentals: providers are required to keep user access records for a period of six months and if payment is made with a credit card, it's even easier to identify and hold guests who cause problems accountable.
- TJSP case no. 2115834-61.2016.8.26.0000: The São Paulo Court has confirmed that the condominium cannot prevent the host from renting an apartment through Airbnb, as this does not mean that the property is for commercial purposes. In the court's words, seasonal rental by Airbnb "is not in the most delusional interpretation equivalent to rental for commercial or industrial purposes."
- TJSP case no. 1009601-48.2016.8.26.0100: The São Paulo Court has confirmed that the condominium cannot prevent a host from renting his apartment through Airbnb under the pretext that the host would be exercising hotel activity. According to the court, leases for a few days have the same residential nature as long-term ones. It is also said that in instances of guest misconduct the condo may impose a fine, but cannot prohibit the host from renting the apartment for the season.
- TJSP case no. 1065850-40.2017.8.26.0114: The São Paulo Court ruled again that the condominium cannot prohibit rentals per season. According to the court, leases for a few days do not turn the apartment into a commercial property, nor into a hotel.
- TJSC case no. 4014239-84.2018.8.24.0900: The Santa Catarina Court has prevented the condo from prohibiting rental by Airbnb because the host has ownership of the apartment and can rent it for the season. According to the ruling, the host only distorts the residential nature of the condominium if he develops commercial activities within the apartment, such as setting up an office or a point of sale to the public.
- TJSP case no. 1005350-81.2017.8.26.0704: The São Paulo Court held that when the host rents his apartment through Airbnb, the condominium may not require the prior delivery of the lease agreement with notarized signature or certified copy of the guest documents. According to the decision, to demand this is an abusive and also discriminatory practice, because it makes unfeasible the rental for foreigners.
- TJSP case no. 2139223-07.2018.8.26.0000: The São Paulo Court prevented the condominium from requiring the host and his guest to appear to the condominium administration to register the lease agreements with a notarized signature. For the court, it is only reasonable for the condominium to ask for the identity of the guest and the license plate of the vehicle they use.
- TJSC case no. 0302119-27.2016.8.24.0139: This decision of Santa Catarina recognized that the condominium cannot prohibit the hosts to rent their apartments for the season. According to the ruling, the law guarantees the host the right to rent his apartment and does not impose a minimum period for rentals per season. Therefore, the condominium may not interfere with rentals. He can only ask for guest identification and penalties for violating his rules of coexistence.
- TJSP case no. 1011315-08.2018.8.26.0477: This São Paulo ruling overturned a condominium assembly that intended to prohibit temporary guests from using common areas of the condominium, such as the pool. According to the judgment, the condominium's attempt to prohibit temporary guests from using the common areas has “no plausible justification” and violates both the right of the host as the property owner and the right of guests to use the common areas.
- TJSP case no. 1001199-30.2018.8.26.0642: This other Sao Paulo decision also recognized that the condo cannot prevent guests from using common areas such as a pool and gym. This is because, for the trial, the condominium cannot treat guests differently than the condominium, because it violates the constitutional right to equality. Also, the decision states that such a restriction undermines the property right of the host because it makes it difficult to rent his apartment.
- TJSP case no. 2194782-80.2017.8.26.0000: The São Paulo Court held that the condominium cannot prohibit guests from using the building's common areas, such as the pool and gym. The court also prevented the condominium from requiring unreasonable documents, such as notarized permits. According to the court, guest turnover by itself does not increase condominium expenses and, if anyone breaks the rules, the condominium can impose fines and need not prohibit hosts from renting their units.
- TJSC case no. 4000879-03.2017.8.24.0000: The Santa Catarina Court held that the condominium cannot limit the number of guests the host receives per rental. According to the decision, the host must observe only the maximum number of people established by local laws, but the condominium cannot go beyond that. For the court, limiting the number of guests per rental is unfair because it means treating the host differently than your neighbors, who can receive as many friends and family as they want in their apartments.
- TJSE case no. 0021111-79.2014.8.25.0001: The Sergipe Court has acknowledged that the condominium cannot prohibit hosts from renting their apartments through Airbnb. The court made it clear that the condo cannot assume that guests are misbehaving and that the risk of misunderstanding also exists in long-term rentals. Also, the decision noted that the condominium may impose a fine in case of misconduct by guests, but can not prohibit the rental of the apartment.
- TJSP case no. 1036147-43.2016.8.26.0100: This decision annulled a condominium assembly that attempted to prohibit rental by Airbnb, understanding that it is residential and not to be confused with hotel services. According to the ruling, the Constitution guarantees the right of the owner to use his property and the condominium cannot prevent it. She also says the condominium may apply penalties for misconduct in the building, but not prevent tenants from renting their apartments for the season.
Other materials of interest
We also recommend that you check out the following material about this subject:
- "Airbnb entra em pauta nos condomínios": Article published by the Estadão, indicating how some liquidators and condominiums have adapted to cope in the best way with the new scenario provided by platforms such as Airbnb.
- "Airbnb e os condomínios": Article by Attorney Dayana Dallabrida, clarifying that the rules and conditions of use of Airbnb are compatible with the rights and condominium duties, and that the hosting standards required in Airbnb "are in a level of sophistication such that they could inspire the review of many conventions and regiments of residential condominiums."
- "Condomínio não pode proibir locação de imóvel pelo Airbnb": Article by Attorney Marcelo Frullani Lopes, for whom "condominiums cannot prohibit the sharing of real estate through electronic platforms such as Airbnb, because the faculty of renting the property is an indissociable element of the right of ownership."
- "O conflito entre os aplicativos e os condomínios nas locações por temporada”: Article by lawyer Gisleni Valente and attorney Raphael Valentim who points to the possibility of access to justice if owners feel injured by condominium decisions that prohibit rent per season.
Tips for good coexistence in condominiums
As seen above, Brazilian legislation does not allow condominiums to prevent or limit the right of the owner to rent their accommodation. But it is important that you follow the standards of good neighbors, avoiding situations that may impair the quietness, health, or safety of other residents.
Therefore, if you rent a property that is part of a building or residential condominium in Brazil and your activity as host on Airbnb is being discussed in the condominium, we recommend that you download our tips for good coexistence in condominiums, in addition to looking for legal guidance to ensure respect for your rights in accordance with the laws stated above.
Airbnb supports that the rules of coexistence established by condominiums, with proper authorization in law, are fulfilled by all residents and tenants, and we suggest that hosts provide all the necessary information to guests in this regard. We will continue to defend, whenever necessary, initiatives to enable people to share their own homes, apartments, rooms, and with this live the valuable experiences of being a host on Airbnb.
As stated in our Terms of Service, the host is the person responsible for the tax obligations related to the rental agreement with the guest. The host needs to declare income tax on the extra income generated by the rent using the “carnê leão”. In case of legal entities, tax obligations may vary.
Tax is a complex subject. Therefore, we recommend that you research and consult specialized professionals for more detailed information.
For a guide on income tax, read our blog post with guidance on how extra income you get with Airbnb should appear on your income tax statement (2018).
If you have questions about the above information, please contact us at email@example.com
The material contained herein is exclusively informative, and should not be interpreted as legal advice. As an independent platform, we do not provide legal guidance. We encourage our hosts to seek professional advice for proper guidance on specific subjects before making any decision or adopting any position.
Last updated: July, 2019