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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. Find more details on our local condominiums page.
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.
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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.
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.
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.
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.
We also recommend that you check out the following material about this subject:
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.
We want to make it easy for you to understand your tax responsibilities as a Host on Airbnb, so we’ve partnered with an independent third-party accounting firm to provide a free tax guide (available in Portuguese) that covers general tax information in Brazil.
Work with your insurance agent or carrier to determine what kind of obligations, limits, and coverage are required for your specific circumstances.
AirCover includes Host damage protection and Host liability insurance, which provide you with basic coverage for listed damages and liabilities. However, these don’t take the place of homeowner's insurance, renter's insurance, or adequate liability coverage. You might need to meet other insurance requirements as well.
We strongly encourage all Hosts to review and understand the terms of their insurance policy coverage. Not all insurance plans will cover damage or loss of property caused by a guest who books your accommodation.
Learn more about AirCover.
Review your homeowner’s or renter’s policy with your insurance agent or carrier to make sure your listing has adequate liability coverage and property protection.
If you have questions about the above information, please contact us at hls-br@airbnb.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: December, 2022....