New Jurisprudence on local accommodation
LOCAL ACCOMODATION IN AUTONOMOUS UNITS DESTINED FOR RESIDENTIAL PURPOSES
Jurisprudence Uniformization Decision 
An autonomous unit destined residential purposes explored for local accommodation (“LA“) purposes violates the horizontal property constitutive title?
- Horizontal property regime set forth in the Portuguese Civil Code;
- Decree-Law no. 128/2014, of August 29 (“DL“).
It was decided that (i) the activity of LA it is not included in the concept of residential purposes, as LA is an activity with commercial nature, and that (ii) the concept of housing is qualitatively distinct from the concept of its use for LA.
It was decided that (i) not only AL is not a commercial act, but (ii) even if it was considered as so, in the onerous assign of use of the autonomous unit to tourists, it is still intended for residential purposes and not for the commercial activity itself.
Jurisprudence Uniformization Decision
“Under the horizontal property regime, the indication in the horizontal property constitutive title that an autonomous unit is destined for residential purposes must be construed as the local accommodation is not permitted therein.”
- It must be made a conjugation between the civil rules and the administrative rules, as the horizontal property constitutive title may restrict the scope of the property’s purpose in relation to what is stated in the project or in the use permit (provided that this is not incompatible with or misrepresents the essential content of the property rights);
- It is not contemplated in the DL any rule protecting the rights of the condominium owners regarding the installation of LA establishments in an autonomous unit destined for residential purposes by another condominium owner, or any other rule that may derogate the protection of these rights granted by the horizontal property regime set forth in the Civil Code;
- The use of an autonomous unit destined for residential purposes may or may not imply the exercise of a commercial activity. However, it does not remove its nature of other purposes than residential purposes set forth in the horizontal property constitutive title;
- There were specific reasons for the legislator to autonomize the LA regime and neither leads to LA being a short term lease;
- The utilities supplied by the LA explorer does not result in a provision of residential use with an extension of continuity and stability, despite of requiring the necessary conditions for habitability;
- Under the scope of the property’s purpose and respective social economic perspective, the LA is not a simple housing in an autonomous unit equivalent to the housing made by other user out of the LA scope (even though they might stay overnight or rest therein);
- Even considering the subsequent amendment to the LA regime (by Law no. 62/2018, of August 22) allowing the condominium’s assembly to adopt a resolution opposing to the exercise of LA activity in autonomous unit, this is an a posteriori reaction measure, distinct from a generalized permission to exercise LA from a “residential permit“;
- LA is not taxed as a residential;
- This solution is in harmony with the provisions of the Constitution of the Portuguese Republic, recognizing the private property, but not absolutizing it, since these rights can be restricted under the horizontal property regime, justified by the unitary order of the real estate group in which these autonomous unit are integrated in.
- Judge Councillor Maria Olinda Garcia:
- The AL corresponds to a residential purposes, but it may also correspond to a functionally diverse use as it may encompass different dynamics from those composing the typical routines of the common or permanent housing and there are these functionalities that may potentially affect the interests of quietness and safety of the other condominium owners;
- Understanding that the LA activity constitutes an use other than residential, so that, based on article 1422(2)(c) of the Portuguese Civil Code, such practice is forbidden to the condominium owners, is a way to give priority to the (legitimate) interests of quietness and safety of the condominium owners who have their habitual residence in the building, in the detriment of the economic interests of the condominium owner who intends to make its autonomous unit profitable.
- Judge Councillor Rijo Ferreira:
- The DL has solely and exclusively excepted what was intended to except therein, therefore all other situations are permitted, once all requirements are met, including the exploration of LA establishments in autonomous units of buildings destined for residential purposes;
- It is not clear that the concept of housing does not include or intended to exclude the concept of LA as, in light of article 236 of the Portuguese Civil Code, this problem was not considered upon incorporation of the horizontal property;
- It is always allowed the use of the protection means foreseen in article 1346 of the Portuguese Civil Code or of the personality rights foreseen in article 70 of the Portuguese Civil Code is always allowed;
- Should be applied the proportionality criteria, according to the concrete and individualized situation and through the subsequent invocation of an effective use that jeopardizes the integrity of the property or of the personality rights of the condominium owners;
- The “specific conditions of the time in which it is applied“, under the terms of article 9 of the Portuguese Civil Code, were not considered. From the illegality of all the LA establishments operating in autonomous units destined for residential purposes (even if registered and with a valid opening to public title), each condominium owner alone may demand the cease of this activity, with a prospective avalanche of processes of this nature and a significant disruption in this sector of activity.
 STJ – Proc.- no. 24471/16.4T8PRT.P1.S2-A-RUJ, of March 22, 2022
 STJ – Proc. no. 4910/16.5T8PRT-A.P1, of January 23, 2020
 STJ – Proc. no. 12579/16.0T8LSB.L1.S1, of March 28, 2017