THE ILLEGALITY OF LOCAL LODGING IN AUTONOMOUS FRACTIONS DESTINED TO HABITATION

Ruling by the Supreme Court of Justice (STJ) on 22nd March 2022, in case nº 24471/16.4T8PRT.P1.S2-A-RUJ

The existence of local accommodation in autonomous fractions integrated in buildings under horizontal property regimes, in which there are fractions used as permanent dwellings, has given rise to several legal disputes.

There have been various doctrinal and jurisprudential understandings on the question of whether the use of an autonomous fraction, integrated in a building constituted as horizontal property, as local accommodation is compatible, when in the constitutive title of horizontal property the same fraction is allocated for housing purposes.

For this reason, the need to stabilise judicial decisions on the issue arises, following the Ruling of Uniformity of Jurisprudence issued by the Plenary of the Civil Sections of the Supreme Court of Justice on 22 March 2022.

The issue addressed in the Uniform Judgment of Jurisprudence under analysis is to know if the exercise of the activity of local accommodation, regulated in Decree-Law no. 128/2014, of 29/08, as amended by Decree-Law no. 63/2015, of 23/04, of 23/04, is allowed in the local accommodation sector. No 63/2015, of 23/04, in autonomous fractions destined to habitation, according to the mention in the constitutive title of the horizontal property of the building in which the fractions are inserted, under the terms and for the purposes of the provisions of article 1418, no. 2, paragraph a), of the Civil Code, constitutes or not, a use other than the purpose for which the fraction is destined, which is forbidden to the joint owners, in accordance with the provisions of article 1422, no. 2, paragraph c), of the aforementioned Code.

As a result, the Supreme Court of Justice addressed two contradictory judicial decisions, namely:

the appealed judgement, which adopted the understanding that the activity of local accommodation does not integrate the concept of housing as a purpose given to the autonomous fractions, and as such the autonomous fraction intended for housing cannot be used for local accommodation, as it violates the purpose for which the fraction is intended, according to the horizontal property title and the condominium regulations of the building.
the fundamental judgment, which adopted the understanding that an autonomous fraction intended for dwelling purposes can be used for local accommodation as it does not violate the horizontal property statute, local accommodation respects the horizontal property title where it states that a given fraction is intended for dwelling purposes, there is a fraction.

The Uniform Judgement of Jurisprudence assumed the following position:

“In the horizontal property regime, the indication in the constitutive deed that a certain fraction is intended for dwelling purposes must be interpreted as meaning that local accommodation is not permitted therein”, this being understood to be the orientation most in line with the spirit of the legal system and the legal rules regulating horizontal property and local accommodation.

Thus, if it is mentioned in the constitutive deed of horizontal property, registered in the land register, that a given fraction is to be used for dwelling purposes as the centre of domestic life, irrespective of the fact that the utilisation permit refers to a generic mention of “dwelling”, it cannot be concluded that any use of that fraction that involves an overnight stay or rest, irrespective of how it occurs or is organised, should be licit.

In the constitutive title of the horizontal property, the purpose given to the autonomous fractions is dwelling. This specific purpose must be interpreted in the sense that “dwelling” means that the fraction has an economic-social function of serving as a residence for persons and households, providing them with the peace, quiet, security and comfort required by any domestic economy (cf. Article 236/1 of the Civil Code).

The concept of housing is qualitatively distinct from that of local accommodation, because a housing fraction has a character of tendential stability of those who use it, whereas local accommodation is characterised by successive and diverse, transitory users, being volatile and disseminated, with qualitatively different repercussions on the housing environment in which they develop.

Consequently, if the constitutive deed of horizontal property mentions the purpose for which a certain fraction is destined – dwelling – and in this fraction local accommodation is to be exploited, any joint owner has the right to oppose the use of this fraction for a purpose other than that which was destined for it in the constitutive deed (cf. article 1422, no. 2, paragraph c) Civil Code).