By Wiuller Leite
On May 7, 2026, the Second Section of the Superior Court of Justice (STJ) established an understanding with significant impact on the real estate market by deciding that short-term rentals (Short Stay), for periods of less than 90 days, in buildings designated for residential use, are only permitted when there is prior approval at a condominium assembly by a quorum of at least two-thirds of the unit owners.
In the judgment rendered, the prevailing understanding was that the use of a unit for short stays, when carried out in a residential-profile condominium, may distort the original purpose assigned to the development. According to the STJ, the manner in which the unit is used and its practical effects on condominium dynamics, especially regarding the circulation of third parties, security, access control, and residents’ peace and quiet, must be compatible with the purpose of the development.
The decision noted that Short Stay agreements, such as those carried out through digital platforms like AIRBNB, do not automatically qualify either as typical residential leases or as classic hotel accommodations, allowing them instead to be understood as atypical agreements. Based on this understanding, the STJ concluded that, in condominiums designated for residential use, the practice of renting units for short-term stays may represent a genuine change in the property’s intended use, thereby triggering the application of Article 1,351 of the Brazilian Civil Code, which requires approval by two-thirds of the condominium owners for any change in the purpose of the building or real estate unit. Furthermore, the Court also based its reasoning on Article 1,336, IV, of the Civil Code, which imposes upon condominium owners the duty to use their unit in accordance with the same purpose assigned to the building.
From a market perspective, the precedent produces direct effects on developers and investors. In several capitals and tourist hubs, there are developments designed for target audiences that rely on the possibility of operating through the Short Stay rental model on digital platforms. The growth of this type of product is linked to a public that acquires properties expecting the profitability generated by high-turnover rentals, especially in central, tourist, or high corporate-demand areas.
For developers, the ruling reinforces the need for consistency between the product offered, advertising materials, the incorporation memorandum, condominium bylaws, and internal regulations. Developments conceived with an economic vocation for the Short Stay model, flexible leasing, or intensive use through digital platforms now require more careful legal planning from the initial structuring of the project. It is no longer sufficient for the market to perceive profitability potential in short-term rentals; it is now indispensable to assess whether the condominium’s legal structure permits such use or whether express regulation approved by the legally required quorum will be necessary.
In practical terms, this means that commercial promises of returns associated with short-term rental operations should no longer be treated as an automatic assumption in conventional residential developments. If the condominium has an exclusively residential designation and there is no authorization approved by a two-thirds quorum at the condominium assembly, the investor may acquire the unit expecting a certain economic exploitation model and later encounter legal limitations on its use, frustrating those expectations. In this regard, the STJ’s decision increases the importance of prior Due Diligence concerning the condominium bylaws, the profile of the development, and the effective possibility of obtaining approval for the activity from the condominium owners.
For investors, the precedent also imposes a revision of acquisition assumptions. The feasibility analysis of units intended to generate income through digital platforms now requires, with even greater rigor, verification of condominium documents, existing assembly resolutions, and the history of tolerance or restriction regarding short-term stays. In other words, analyzing the property registration alone does not guarantee that the investment is secure or that it will effectively achieve its intended purpose. It is necessary to identify whether there is compatibility between the intended use and the use legally permitted by the condominium.
The precedent is also likely to affect already-built units in which platform-based rental activity is already routine. Condominiums currently operating with gaps in their bylaws or with unclear rules regarding hosting and short-term rentals will likely revisit the matter in condominium assemblies. At the same time, investors exposed to operational models already in place but lacking internal legal support may face greater risks of disputes, operational restrictions, and litigation involving fines, injunctions against renting, or limitations on guest access.
There is, however, an important aspect that should be emphasized: the decision should not be interpreted as an absolute prohibition on the use of platforms such as AIRBNB in every residential condominium. What the STJ established is that, for such use in residential developments, the change in purpose or authorization must be approved at a condominium assembly and comply with the qualified quorum of two-thirds.
The economic exploitation of residential units through the Short Stay model is no longer treated merely as an individual choice of the property owner and is now analyzed in light of the condominium’s collective function, the building’s designated purpose, and the balance between property rights, security, and condominium coexistence. For developers, this recommends legally structuring their developments according to the product’s intended vocation from the incorporation memorandum onward, with express provision for such possibility (or prohibition) from the very first draft of the condominium bylaws; for investors, it requires reinforced due diligence before acquisition, including analysis of condominium bylaws and subsequent condominium resolutions as a prior step in the investment decision-making process. For condominiums, it requires governance and alignment between the interests of the majority, to be reflected in the condominium bylaws and internal regulations.
The STJ decision establishes an important milestone for the real estate market. The real estate team at Marins Bertoldi Advogados remains up to date with the latest matters and precedents involving real estate development and restrictions on the exercise of property rights and is available to provide legal assistance for your company.
