The Supreme Court of Justice (STJ), after the discussion of the issue in several instances, has, in a Uniform Judgement of Jurisprudence, determined that the exercise of local accommodation activity in a fraction intended for habitation will not be allowed as it violates the purpose that was established in the horizontal property title.
The Court states that “in the horizontal property regime, the indication in the constitutive title, that a certain fraction is intended for dwelling purposes, must be interpreted as meaning that local accommodation is not permitted therein” and, therefore, the existence of local accommodation in buildings intended for dwelling purposes should be prohibited.
The constitutive title of the horizontal property of a building should always identify the purpose for which each fraction is destined, specifying that it is forbidden for the condominium owners to use it for any purpose other than that purpose. As such, the exercise of the activity of local accommodation in a fraction intended for habitation, being that activity a commercial activity deriving from an economic exploitation, would violate the purpose established in the horizontal property title.
The Supreme Court considers that such understanding protects, from the outset, “the legitimate expectation of each condominium member as to the conditions of use, either of the common parts, either of the respective fraction, either of the others, which conditioned their will to enter into a solution of ownership with various notes of communion not only legal, but real, material” as decided by the Court of Appeal of Porto in the same case.
In the Decree-Law regulating local accommodation (DL no. 128/2014, of 29 August) no provision is made for any rule that may be derogatory to the rights provided by the horizontal property regime of the Civil Code.
This unifying jurisprudence decision will have implications for current local accommodation establishments, regardless of the respective date of authorisation, and an increase in litigation associated with these matters is expected.