Airbnb vs. the Brazilian justice system

This article was written and published in Spanish and has been translated into English via Google Translate. Click here to read the original article.

While its regulation is advancing in virtually the entire region, Airbnb faces a difficult judicial process in Brazil

There, the court must determine if it is legal for a consortium to prohibit an owner from renting its property through this platform.

The digital tourist rental platforms, among which Airbnb stands out, are in the process of regulating in the region. The most accurate steps are being taken by Uruguay, Colombia, Argentina, Mexico and Chile, each with its own peculiarities. But in Brazil, the fight against these so-called “collaborative economies” (by their defenders) or “informal accommodation intermediaries” (by their detractors) was prosecuted.

In the country, where Airbnb has more than 250,000 ads and about 3.7 million guests per year, a group of residents of Porto Alegre filed a lawsuit that is putting the company in check, which landed in 2012.

Now, the Superior Court of Justice (STJ) began to judge this month the legality of the rents in buildings through this type of platforms. In truth, what you should define is whether the community of neighbors of the condominium may or may not prohibit a landlord from leasing your property through the application, a decision that could establish jurisprudence for other cases.

Although the process was momentarily postponed and the decision remains in the air, it seems to benefit the platform in principle. The case instructor at the STJ, Luis Felipe Salomão, considered that the prohibition of rental of real estate or rooms through such applications "confronts the property right guaranteed in the Constitution."

Pending the conclusion of the trial, AirBnb keeps several fronts open and has the frontal opposition of the hotel sector, which has been threatened by the success of the platform, which it accuses of unfair competition.

"Brazil lost foreign exchange, dozens of legalized hotel businesses were closed and hundreds of employees were fired for imbalances caused by lack of regulation, supervision and taxation."

— The National Hotel Association (ABIH),

Airbnb users in Brazil generated about US $ 1,878 million last year

In that sense, the President of ABIH, Manoel Linhares, told the agency Efe that, as a result of this disparity, "in terms of tax collection, these companies - which are illegal because there is no specific legislation - prevent hundreds of million reais for public coffers.”

However, Airbnb differs and ensures that the seasonal rental in Brazil “is expressly authorized by the Tenancy Law” and, therefore, “regulated, regardless of whether the transaction has been made directly by the owners, by real estate agents or via platforms.

"This modality does not configure hotel commercial activity, which is regulated by the General Tourism Law and essentially involves the provision of services and other activities," the platform said in a statement.

“Prohibiting or restricting seasonal rentals generally violates the property right of those who rent their property regularly,” adds Airbnb.

According to the platform data, users generated an economic activity of about US$ 1,878 million last year in Brazil, considering the entire chain, from restaurants to purchases in local commerce.

This article was written and published in Spanish and has been translated into English via Google Translate. Click here to read the original article.

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