The argument that condominiums should authorize—not prohibit—short-term unit rentals, a model exploited by platforms like Airbnb, has the effect of stabilizing the market, but its real impact will depend on the profile of each condominium.
This is the conclusion of lawyers interviewed by the online magazine Consultor Jurídico regarding the recent ruling of the 2nd Section of the Superior Court of Justice.
The panel concluded by majority vote that short-term rentals distort the residential character of condominiums. Therefore, it can only be permitted if expressly authorized in the condominium bylaws, with a two-thirds vote of the condominium owners.
This position, which is not binding but has persuasive force, has a much less mandatory practical effect than it might seem. The prohibition of this type of rental for residential condominiums will depend on the existence of conflict based on the profile of each one.
In condominiums predominantly occupied by permanent residents, the high turnover of tenants can generate resistance and legal action regarding the use of the units, at which point the STJ (Superior Court of Justice) ruling will apply.
This is not the case for studio, loft, and flat-type properties, or those located near places with high pedestrian traffic, such as tourist attractions, convention centers, concert halls, or airports. In these cases, there is already an expectation of exploitation of the units through rental.
It depends on the condominium
“The profile of the condominium will dictate how the issue will be addressed in each case, imposing on the market the need to adapt to this reality,” explains lawyer Rochelle Ricci, partner in the contracts area at Machado Associados.
She recommends caution in confirming the profile of the development and the applicable condominium rules before buying the property. And she highlights how the transformations caused by the platformization of the economy made a decision like that of the STJ necessary.
While real estate exploitation was previously secondary and concentrated in vacation destinations, today it has become perennial and professionalized. There are companies dedicated to buying units and advertising them on Airbnb, generating income and even impacting housing policy worldwide.
“This exploitation has intensified in condominiums with units predominantly intended for the permanent residence of the occupants, generating additional concerns about occupancy turnover, security, and excessive noise. Therefore, the STJ’s decision seeks to stabilize this reality.”
Balanced Decision
Along the same lines, Rodrigo Palacios, a partner in the Real Estate Law area at Viseu Advogados, believes that the STJ’s decision corrects an interpretative distortion. He praises the winning vote of Minister Nancy Andrighi, who decoupled the conclusion from the Airbnb phenomenon.
The magistrate said that it is not the advertisement on digital platforms or otherwise that alters the residential character, but the characteristics of the rental: short-term, with economic exploitation and some degree of professionalization.
If the unit is offered to strangers frequently and habitually, without a minimum number of days and sometimes even with services such as cleaning and laundry, it becomes commercial, a use that needs to be provided for in the condominium bylaws.
“This technical distinction preserves the legitimate right of owners who make occasional use of their units for seasonal rentals, without compromising the safety and tranquility of residential condominiums. The judgment, therefore, adequately balances individual property rights with collective condominium interests,” he said.
Rodrigo Palacios also downplayed the impact on the real estate market. “Serious investors prefer clear rules to fluid interpretations. The requirement for prior condominium deliberation protects both the other residents and the investors themselves, who can now properly assess the viability of their projects before acquisition.”
Impact on Investors
According to Ramon Barbosa Tristão, a lawyer at Nascimento e Mourão Advogados, the decision will prompt a nationwide review of bylaws to expressly address short-term rentals. There is potential for litigation in cases where the bylaws are silent on the matter.
“From an economic perspective, the decision directly impacts investors whose business model was based on exploitation via digital platforms (such as Airbnb), potentially leading to the devaluation of common residential assets in favor of developments structured for short stays,” he assesses.
This risk permeated the debates at the Superior Court of Justice (STJ). The dissenting opinion held that this use of the units would presumably be permitted, as it involves the exercise of the right to property guaranteed by the Constitution, which cannot be restricted without legal provision.
In supporting this opinion, Minister Ricardo Villas Bôas Cueva requested further reflection. “There are draft laws on this, whether or not it is appropriate to reverse the trend and prohibit this type of rental. There are discussions, yes, all over the world. For this, it would be necessary for Parliament to deliberate. Can we, now, make public policy?”
Regina Céli Martins, senior lawyer at VBD Advogados, highlighted this position, which recognizes that short-term rentals without the use of services are not equivalent to residential rentals or lodging, being an atypical contract. “If it is atypical, with no regulation governing it, the automatic prohibition even violates the constitutional principle of legality.”
In a statement, Airbnb emphasized that the STJ ruling refers to a specific and isolated case, is not definitive, and does not prohibit rentals via the platform.
“Prohibiting or restricting short-term rentals violates the constitutional property rights of those who rent out their property. In this context, Airbnb will take appropriate legal action and stand alongside hosts, evaluating all avenues to ensure that the community continues to exercise its legal right to generate income from their own properties.”
Conjur Portal, May 15, 2026, 8:54 AM
