Few subjects in contemporary Brazilian condominium law have generated as much ink and as much disagreement as short-term rentals through digital platforms. Suspended between the uncompromising defense of individual property rights and the preservation of a building's residential character, the debate migrated from state appellate courts into scholarly literature, resurfaced through special appeals, split two panels of the Superior Court of Justice in directions that did not always converge, and — in May 2026 — found in the Court's Second Section its densest formulation to date, without yet reaching its final resolution.

This article traces that trajectory in three layers: the doctrinal foundations that anticipated the current dogmatic axis, the sequence of Superior Court of Justice decisions that consolidated it, and what remains open on the horizon of Repetitive Theme No. 1,443. It closes with a proposition on what practically changes, from this moment forward, for owners, condominium managers, and attorneys operating at the boundary between the individual right to enjoy property and the collective governance of the condominium.

I. A controversy that matured in layers

The legal impasse surrounding the offering of residential units on short-stay digital platforms is, at heart, a textbook case. Within a single controversy, it gathers the collision between the individual right to property (Article 5, XXII, of the Brazilian Constitution), the unit owner's duty to respect the building's original destination (Civil Code, Article 1,336, IV), the normative autonomy of the condominium bylaws (Articles 1,333 and 1,334), and the networked digital economy that, in less than a decade, reorganized the global lodging market.

For years, Brazilian state courts oscillated between two positions. On one side, the permissive thesis — the platform-mediated rental would be a mere modality of the seasonal lease provided under Article 48 of Law No. 8,245/1991 (the Tenancy Law); prohibiting it would require an express amendment to the bylaws, adopted through the qualified quorum of Civil Code Article 1,351. On the other, the restrictive thesis — reiterated exploitation, marked by high guest turnover and auxiliary services, would approximate the activity to hotel hosting; the general clause of residential destination would suffice, standing alone, to prohibit the practice, regardless of any specific assembly resolution.

The framework became untenable. Identical disputes, filed in comparable condominiums, generated opposing outcomes depending on the panel and the court. The prevailing thesis, when one existed, shifted from bench to bench. Legal uncertainty — in the Superior Court's own language — was palpable.

II. Doctrinal foundations: three readings that anticipated the outcome

Before the Superior Court settled the matter, three scholarly readings formed the theoretical ground on which the later decisions came to rest. Each contributed a specific analytical cut — and none, in isolation, produced the answer the Court ultimately adopted.

2.1. Cabral and Viana's business-law reading

In a 2022 study published in the Revista de Direito Civil Contemporâneo, André Luiz Cavalcanti Cabral and Davi Travas Viana proposed a business-law reading of the matter. Starting from the definition of entrepreneur in Article 966 of the Civil Code — professionalism, organized economic activity, production or circulation of services —, the authors demonstrated that the typical digital-platform host does not enter into a seasonal lease in the technical sense of the Tenancy Law: they conduct entrepreneurial activity, even without proper registration with the Ministry of Tourism, thereby engaging in what the authors called irregular hosting.

The central contribution of this reading was to shift the axis of the debate. The question is not whether seasonal leasing is permitted — it is. The question is when the practice exceeds the framework of a lease and becomes entrepreneurial exploitation of the residence. The threefold test proposed by the authors — entrepreneurial character, provision of services (however domestic), and commercial discourse — anticipated, four years in advance, the argumentative core Justice Nancy Andrighi would later deploy.

2.2. Proportionality and the concrete case in Oliveira

Gleydson Kleber Lopes de Oliveira, commenting on Special Appeal No. 1,819,075/RS still in 2022, advanced a distinct and complementary thesis. For the author, the legal nature of the contract depends, essentially, on the presence or absence of auxiliary services. Mere leasing of space, for a short period, without services, remains under the Tenancy Law; leasing with a hotel-style bundle (cleaning, linen, breakfast, autonomous check-in) shifts into the realm of hosting.

From this distinction, the author invoked proportionality to argue that condominium prohibition would be legitimate only upon concrete demonstration of destination distortion. The critical point of the thesis lies in a caveat that subsequent precedents would eventually relativize: "high turnover and the absence of a bond between occupants, standing alone, do not render the contract one of hosting". Any disturbance to quiet enjoyment should be addressed within the internal disciplinary framework — not through an outright prohibition of the activity.

2.3. Rizzardo Filho's systemic critique

In a 2025 essay, Arnaldo Rizzardo Filho introduced into the debate a missing cut: the distinction, inherited from international business literature, between the platform economy and the sharing economy. The first corresponds to organized entrepreneurial exploitation in networked form, under classic market logic — the traditional Airbnb model, involving multiple units, professional management, and high turnover. The second describes the occasional sharing of idle resources by private individuals, without a continuous profit motive — the owner who hosts visitors during a specific sporting event, or who offers a room while traveling.

The author's critique of Superior Court case law is severe and technically compelling: by treating both phenomena as equivalent, the Court ends up suppressing occasional residential sharing as well, which does not distort destination and does not produce meaningful condominium externalities. Rizzardo Filho further warned that framing the matter exclusively through the lens of the Tenancy Law ignores the specific treatment provided by the Tourism Law (Law No. 11,771/2008) — a scholarly contribution that, though not embraced by the Superior Court, posed the correct question: what economic phenomenon, precisely, are we dealing with?

III. The Superior Court's trajectory: three decisions, three steps

Superior Court case law on the topic did not emerge fully formed in May 2026. It was built in three successive steps, each consolidating an argumentative shift from the one before.

Special Appeal No. 1,819,075/RS (4th Panel, 2021). The first step was a fractured judgment. Faced with an unusually rich factual pattern — an owner subdividing her own apartment into five bedrooms, providing cleaning services, breakfast, and linens, without an autonomous doorman, and charging per diem — the Fourth Panel divided. The original reporting Justice, Luís Felipe Salomão, voted for permissiveness, grounded in the right to property and in classifying the activity as a seasonal lease. The dissenting vote, delivered by Justice Raul Araújo, prevailed: he qualified the activity as atypical hosting of an entrepreneurial nature and recognized the legitimacy of the condominium's prohibition. The prevailing thesis was surgical on this point: the combination of high turnover and auxiliary services constituted, in the concrete case, commercial exploitation incompatible with the exclusively residential destination set forth in the bylaws.

Special Appeal No. 1,884,483/PR (3rd Panel, 2021). Seven months later, the Third Panel, through Justice Ricardo Villas Bôas Cueva, endorsed a similar understanding in a different context. The case involved a condominium whose bylaws expressly prohibited rentals shorter than ninety days. The Court ratified the validity of the contractual restriction and reinforced the argument that a qualified assembly resolution has competence to regulate — or prohibit — the use of units when the practice distorts the building's destination.

Special Appeal No. 2,121,055/MG (2nd Section, 2026). On May 7, 2026, by a five-to-four majority, the Second Section of the Superior Court — the body responsible for uniformizing private-law questions — rendered a decision that reformulated the dogmatic axis of the controversy. Justice Nancy Andrighi reported the case, and her prevailing opinion articulated three technical premises of particular relevance.

The first: the contract mediated by digital platforms is atypical. It does not fit fully within the seasonal-lease category of the Tenancy Law, nor within the hotel-hosting category of Law No. 11,771/2008. It is its own contractual figure, forged by the digital economy, to which the general norms of the Civil Code apply — particularly those governing condominium life.

The second: the distribution channel is irrelevant to the legal classification of the transaction. Whether the offer is made through a digital platform, a real estate broker, a notice posted at the concierge desk, or a newspaper classified advertisement, what defines the contractual nature is the substance of what is practiced — reiteration of exploitation, high turnover, professionalization — not the channel used.

The third and most operative: reiterated and professionalized exploitation, by its very nature, alters the destination of the unit. And every alteration of destination, by express command of Civil Code Article 1,351, depends on the approval of two-thirds of the unit owners gathered in assembly. The resulting conclusion is arithmetic: without such approval, the practice is invalid — not because the bylaws expressly prohibit it, but because authorizing it, without observance of the qualified quorum, would constitute an irregular change of destination.

IV. What Special Appeal No. 2,121,055 actually settled

It is worth dissecting, with technical precision, the concrete effects of the decision. The Second Section's ruling did not prohibit the activity — that would have been excessive, both constitutionally and economically. What it did was reorganize the procedural burden of its practice.

Prior to Special Appeal No. 2,121,055, disputes essentially turned on whether an express prohibition existed. If the bylaws were silent, the owner's right of enjoyment tended to prevail in most state courts, based on a restrictive reading of any limitation on property. After Special Appeal No. 2,121,055, that logic inverts: authorization is what now requires qualified deliberation; absence of deliberation is equivalent to prohibition; silent bylaws now weigh against the unit owner who engages in the practice without prior assembly approval.

In dogmatic comparison with earlier case law, the shift is significant. Whereas Special Appeal No. 1,819,075/RS worked primarily with the concept of atypical entrepreneurial hosting — close to the Cabral and Viana reading —, Special Appeal No. 2,121,055/MG operates on a different foundation: change of destination. The practical result is similar, but the path is distinct — and that distinction matters for the drafting of pre-litigation notices, legal opinions, and pleadings.

V. What remains unresolved: Repetitive Theme No. 1,443

One technical caveat, frequently omitted in the hurried coverage of the ruling, must be stated: Special Appeal No. 2,121,055/MG is not binding precedent. It falls under none of the hypotheses of Article 927 of the Code of Civil Procedure. It is not a binding summary, not a general-repercussion judgment, not a thesis fixed under the repetitive-appeals regime. It is persuasive case law of the Superior Court's Second Section — of considerable institutional weight, but without formal binding force upon the remaining judges and courts.

The binding seal will arrive — and will arrive soon — with the ruling on Repetitive Theme No. 1,443, already docketed by the Superior Court, which will define whether the residential destination clause in condominium bylaws is, standing alone, sufficient to prohibit short-term rentals of individual units through digital platforms, regardless of express prohibition. Once published, that decision will bind the entire national judiciary under Article 927, III, of the Code of Civil Procedure.

In the interim, three readings of the current landscape are available: (i) for condominiums, Special Appeal No. 2,121,055/MG is a solid foundation for notifying violators and conducting regulatory assemblies; (ii) for owners, it is unequivocal notice that activity without assembly approval is conduct of elevated procedural risk; (iii) for attorneys, it is a mandatory point of departure — but not a point of arrival. The practitioner who today drafts an opinion without mentioning Repetitive Theme No. 1,443 delivers a technically incomplete piece.

VI. What changes in practice

For the owner. The owner who today offers a property on digital platforms in a residential condominium without prior two-thirds assembly approval operates in a zone of substantive legal risk. This is not theoretical risk: pre-litigation notices, condominium fines, actions for injunctive relief, and — in extreme cases — judicial imposition of damages for breach of the bylaws have now found support in Superior Court precedent. Regularization before conflict is invariably less costly than defense after notice.

For the manager and the property administrator. For the condominium manager, Special Appeal No. 2,121,055/MG offers a technical foundation for three courses of action that were previously uncertain terrain: (i) formal notification of the offending unit owner, grounded in breach of residential destination; (ii) application of the sanctions set forth in the internal rules, subject to the minimum adversarial process required by Superior Court doctrine; and (iii) convening a specific assembly to deliberate on the authorization — or regulated prohibition — of the activity, observing the qualified quorum of Article 1,351. Caution, however, remains warranted. Blanket prohibitions, fines imposed without prior notice, and unilateral restriction of guest access by the manager may themselves constitute abuse of right and expose the condominium to liability. The Superior Court precedent supports regulated conduct — not summary prohibitions.

For the attorney. For the attorney, the new landscape requires three methodological adjustments. The first, dogmatic: replacing, in opinions and pleadings, the earlier reasoning grounded in Special Appeals Nos. 1,819,075/RS and 1,884,483/PR with the updated reasoning of Special Appeal No. 2,121,055/MG — which, as noted, rests on a distinct dogmatic axis (change of destination rather than irregular hosting). The second, procedural: consistently noting the persuasive nature of the precedent and the pendency of Repetitive Theme No. 1,443. The third, strategic: for condominiums that have not yet deliberated on the topic, the present moment is opportune for bylaw revision — before the matter returns to the assembly debate already under the pressure of binding precedent.

VII. The underlying question: prohibit or regulate?

Having traced the trajectory, the question that case law, by its nature, cannot fully answer remains. The binary solution — permit or prohibit — addresses the concrete case, but not the phenomenon. The digital economy will not disappear by decision of the Superior Court. Platforms will continue to operate. Owners will continue to seek to monetize their properties. Condominiums will continue to demand preservation of collective peace.

The mature response perhaps lies in a third way — the same one Rizzardo Filho pointed to in his recent essay and which Bill of Law 4/2025 (the Civil Code reform) has begun to touch upon. Rather than the alternative between total prohibition and absolute permissiveness, a regulatory hypothesis: prior guest registration, a percentage cap on units simultaneously operating under this regime, a specific condominium contribution to cover the additional security and maintenance costs generated by high turnover, and direct, proportional liability of the host-owner for the conduct of guests.

This is, in truth, the legal architecture the subject demands. Not blind prohibition, which ignores economic reality and drives the activity into condominium clandestinity. Not absolute permissiveness, which sacrifices the collective right to safety and quiet in the name of an absolutist reading of property. But proportional regulation, deliberated in assembly, formalized in the bylaws, anchored in clear rules of coexistence.

That is the architecture contemporary condominium law is being called to design — before Repetitive Theme No. 1,443 imposes, with binding force, the model that the assembly, by its own volition, did not decide to build.

References

• Constitution of the Federative Republic of Brazil, Article 5, XXII and XXIII.
• Brazilian Civil Code (Law No. 10,406/2002), Articles 1,228, 1,333, 1,334, 1,336, IV, and 1,351.
• Brazilian Code of Civil Procedure (Law No. 13,105/2015), Article 927.
• Tenancy Law (Law No. 8,245/1991), Article 48.
• Tourism Law (Law No. 11,771/2008), Articles 21, 23, and 24.
• Superior Court of Justice, Special Appeal No. 1,819,075/RS, 4th Panel, Justice Raul Araújo (reporting for majority), judgment of April 20, 2021.
• Superior Court of Justice, Special Appeal No. 1,884,483/PR, 3rd Panel, Justice Ricardo Villas Bôas Cueva, judgment of November 23, 2021.
• Superior Court of Justice, Special Appeal No. 2,121,055/MG, 2nd Section, Justice Nancy Andrighi, judgment of May 7, 2026.
• Superior Court of Justice, Repetitive Theme No. 1,443 (docketed, pending judgment).
• CABRAL, André Luiz Cavalcanti; VIANA, Davi Travas. Reflections on the (Un)Lawfulness of Economic Exploitation of Residential Condominium Units for Short-Term Stays (Airbnb Style). Revista de Direito Civil Contemporâneo, vol. 30, year 9, pp. 245-289, São Paulo: Ed. RT, Jan./Mar. 2022.
• OLIVEIRA, Gleydson Kleber Lopes de. Leasing of Real Estate through Digital Platforms and Special Appeal No. 1,819,075/RS. In: Temas de Direito Imobiliário. Rio de Janeiro: Lumen Juris, 2022.
• RIZZARDO FILHO, Arnaldo. The Platformization of the Real Estate Market, its Repercussions on Brazilian Law, and the Obscure Points that Persist. In: Tendências Imobiliárias. São Paulo: Foco, 2025.
• Bill of Law No. 4/2025 — Reform of the Brazilian Civil Code (pending before the National Congress).

This content has strictly informational and institutional purposes. It does not constitute individualized legal advice and does not replace the specific technical analysis of each concrete case. Published in compliance with Resolution No. 205/2021 of the Federal Council of the Brazilian Bar Association.