Short Term Rentals in Condominiums: What the STJ's New Position on Airbnb Means for Real Estate Businesses

The short term rental economy stopped being an informal niche years ago. Real estate investment funds, developers, property management firms, and small and midsize companies specialized in managing units for platforms like Airbnb and Booking have built a significant sector in Brazil, complete with management contracts, portfolios of units, and revenue models based on guest turnover. This market has always lived with a gray area: condominium bylaws written decades ago, designed to regulate traditional leases, rarely addressed explicitly what to do with stays of a few days booked through an app.

That regulatory gap, resolved for years on a case by case basis by state courts, reached a decisive chapter in May 2026. The Second Section of the Superior Court of Justice (STJ), bringing together the two panels that rule on private law matters, decided by a narrow majority, five votes to four, that the economic or professional exploitation of a unit in a residential condominium for short term stays depends on approval by the condominium assembly, through a qualified quorum of two thirds of all unit owners. For companies that have bought, manage, or intend to acquire properties for this purpose, the ruling is not a minor detail of condominium law disconnected from business reality. It reshapes the level of legal risk embedded in every unit of the portfolio.

What changed in Special Appeal 2,121,055 and why the narrow vote matters

In the ruling, reported by Justice Nancy Andrighi, the STJ upheld a decision from the Minas Gerais Court of Appeals and established two premises that deserve attention from anyone structuring alternative hospitality businesses. The first is that the channel used to list the property does not define the nature of the contract: it makes little difference whether the listing is on Airbnb, another platform, or with a traditional real estate agency, what matters is how the unit is actually used. The second is that contracts brokered through these platforms, when they involve habitual economic exploitation, do not fit either as standard residential leases or as hotel style hospitality, and are instead treated as atypical contracts, distinct from the short term lease described in Article 48 of the Tenancy Law.

The five to four vote shows that the controversy is far from settled even within the court itself. The dissenting justices argued that the prohibition would need to appear expressly in the bylaws, and that a generic clause establishing residential use would not be enough to block the activity. The majority took the opposite view: a simple provision stating exclusively residential use is already enough to make short term rentals incompatible with the purpose of the condominium, with no need for an explicit ban. For companies that base their legal strategy on bylaws that are silent on the subject, this reading considerably widens the scope of restriction a condominium can impose, even without having specifically voted against Airbnb style rentals.

Repetitive Appeal Theme 1,443: why legal uncertainty has not gone away

After the May ruling, the Second Section assigned two special appeals to the repetitive appeals procedure, registered as Theme 1,443, under the rapporteurship of Justice Raul Araújo. The question to be decided is exactly the point that divided the justices in the earlier case: whether a clause establishing residential use, on its own, is enough to block short term rentals, or whether the bylaws must expressly forbid this type of activity. As a result of this assignment, the STJ ordered the suspension, nationwide, of individual and collective lawsuits discussing this controversy.

This procedural detail carries direct weight for business planning. Companies currently facing notices from condominiums, injunctions to stop using units, or disputes over the validity of assemblies that authorized or banned the activity may have their cases put on hold until the repetitive appeal is decided. That means living, for an undetermined period, with units in legal limbo within the portfolio, with no court ruling to settle the matter in the short term. Once the position on Theme 1,443 is set, it will have binding effect nationwide, under Article 927, item III, of the Code of Civil Procedure, and must be followed by judges and courts at every level.

Real estate due diligence: a new mandatory checklist item

For companies that buy, manage, or structure funds holding units earmarked for short term rentals, the current scenario requires adding an item that until recently was a secondary part of feasibility analysis: a detailed review of the condominium bylaws and the history of assembly minutes for each property. Before the STJ ruling, it was enough to check matters such as outstanding condominium fees, title status, and any liens. Now, the absence of a specific assembly authorization, passed by a two thirds quorum, becomes a legal risk just as relevant as a title issue, one capable of derailing the intended use of the unit even after the purchase has closed.

This point is particularly sensitive for real estate investment funds and holding companies that assemble portfolios with dozens or hundreds of units across different buildings. Each building has its own bylaws, its own history of resolutions, and its own balance of power between unit owners who favor the activity and those who oppose it. A business model built for scale, with standardized management contracts signed with owners, now needs to check, building by building, whether a valid authorization exists, otherwise the projected return on the operation risks being cut short by an assembly vote or by a lawsuit filed by the condominium itself.

Contract clauses that deserve review in management and booking agreements

Short term rental management companies typically sign management agreements with owners, under which they take on responsibility for listing, pricing, hosting guests, and passing along revenue in exchange for a commission. These contracts generally assume that the owner has the right to use the unit this way. Given the STJ's position, it makes sense to revisit representation and warranty clauses, where the owner certifies that the activity is authorized by the bylaws or by the assembly, as well as liability clauses that spell out what happens if the condominium suspends the activity mid contract, whether due to lack of authorization or a later decision revoking an existing one.

It is also worth considering termination clauses that release the manager from penalties in case of a later ban by the condominium, along with mechanisms for proportional reimbursement of amounts invested in furniture, professional photography, and marketing campaigns for the unit, in case the activity is stopped by an assembly decision. For platforms that act only as booking intermediaries, without a direct management relationship, exposure is smaller but not nonexistent: the STJ's view that the listing channel does not define the nature of the business reinforces the trend toward joint liability in disputes involving owners, condominiums, and intermediaries, especially when there is evidence of coordinated action in the commercial exploitation of the property.

Tax and corporate consequences of being classified as an atypical contract

Classifying short term rentals operated for economic gain as atypical contracts, rather than as traditional residential leases, has the potential to ripple beyond condominium law. Companies organized as legal entities to operate short term rental properties already deal with tax debates over the nature of their revenue, the application of municipal service tax (ISS) in certain cities that treat the activity as equivalent to hospitality services, and the most suitable tax regime based on transaction volume, whether presumed profit or another framework. The court's classification of the contract as its own distinct category, separate from both standard leases and classic hotel hospitality, is likely to fuel administrative and judicial debates over which tax regime actually applies to each type of operation, which makes it advisable to keep a close eye on municipal tax assessments on the subject.

On the corporate side, companies that structure real estate holding companies or special purpose entities to manage short term rental portfolios should consider, in their articles of association and in any quotaholder or shareholder agreements, clauses that specifically address the risk of condominium restrictions as a relevant factor in asset valuation and in profit distribution. Mergers and acquisitions involving portfolios of this kind also gain a new due diligence item, requiring the buyer to assess, unit by unit, the solidity of the condominium authorization before pricing the deal, or risk acquiring an asset whose projected revenue stream falls apart after closing.

Taking part in the assembly as a strategy, not a formality

Given the two thirds quorum required under Article 1,351 of the Civil Code, as amended by Law 14,405 of 2022, companies that rely on short term rentals as a significant part of their business model can no longer treat participation in condominium assemblies as an operational detail to be delegated without oversight. Building alliances with other owners who support the activity, proposing internal rules that balance economic use with the security and peace of mind of other residents, and formally documenting every resolution have become part of the business's own risk management, not just a duty owed by the building manager or the condominium.

This applies both to companies already operating units without express authorization, which should consider formalizing their situation before facing a notice or a lawsuit, and to those planning to acquire or manage new units, which should demand that authorization as a precondition for the deal to make sense. The nationwide suspension of lawsuits on Theme 1,443 does not suspend the need to act: until the STJ sets its final position, the practical standard that prevails is the qualified assembly quorum, and ignoring it exposes the company to litigation, contractual penalties, and, in the worst case, the inability to keep operating the unit at all.

The short term rental market should keep growing in Brazil, driven by tourism and by the search for alternative sources of real estate income, but the STJ ruling makes clear that this growth, when organized on a business scale, cannot ignore the legal structure of the condominium where the property sits. Reviewing management contracts, updating risk clauses, mapping the assembly status of every unit in the portfolio, and following the outcome of Theme 1,443 are steps that, taken proactively, prevent a profitable operation today from turning into a contractual and corporate liability tomorrow. In this context, having legal counsel experienced in reviewing condominium bylaws, real estate management contracts, and the corporate structuring of rental portfolios stops being an accessory cost and becomes part of the business's own sustainability.