www.tourismlaw.pt Public and private law instruments to protect neighbours on accommodation Afonso Café University of the Algarve International Journal of Tourism, Travel and Hospitality Law PRE-PRINT
Public and private law instruments to protect neighbours on accommodation Afonso Ribeiro Café1 I. Introduction; II. Local accommodation - Nature of the activity; III. The case of Portugal; 1. Sources of law; 2. Protection of neighbours; 3. Permit of use; 4. Resolution of neighbourhood issues; a) Register termination by decision of the Mayor; b) Limitation by the constitutive title of the horizontal property - Supreme Court of Justice of Portugal decision, dated 22.03.2022; IV. Conclusions. Abstract: The growing of tourism in the world has given a new face to the territories; although important benefits arose from this industry, there are, nonetheless, externalities affecting the populations that need to be balanced and regulated by the States. The fluid regulation on private house renting and the substantial growth of this market, soared by online platforms, has brought regulation challenges on relations between neighbours on horizontal property estates. This work uses the Portuguese regulation as a case to analyse whether the legal solutions used to balance the accommodation services provided on these properties with the protection of neighbours’ interests are the most effective. Keywords: Private house renting, local accommodation, neighbours’ protection; horizontal property. Introduction Tourism today is one of the most important economic activities, particularly for those countries or regions which, given the fragility of the primary and secondary sectors, need a strong tertiary sector to improve their balance of payments. 1 Assistant Professor, Economics Faculty of the University of Algarve, Lawyer, apcafe@ualg.pt afonso.cafe@apc-advogados.pt.
ISSN 2184-8793 ISSNe 2975-9056 This is an activity whose effect on the daily life of the populations is very direct, consisting into the immediate daily introduction of external monetary means, which positively results in enhancing the quality of life of the community, in particular the local commerce, which benefits from the presence of new consumers with more elaborated and sophisticated uses and an increased value. As a result, it improves the quality of urban life, since, under pressure from tourism entrepreneurs and visitors, municipal and sub-municipal entities are led to intensify their action in terms of cleaning, arrangement, and maintenance of public spaces, painting facades of buildings, improving the quality of public transport, or monitoring compliance with health rules in public places. The economic gains generated by tourism obviously benefit individuals, especially when we talk about urban areas, through the broadening of the population basis that benefits from the increase of touristic revenues and the democratization in the access to touristic products and services, in which small and medium-sized entrepreneurs act in parallel with economic groups or having them as clients, taking advantage and benefiting from their greater investment capacity and ability to determine the tourism offer. This multiplier effect of tourism on average population and on the small and medium-sized businesses is even more visible in the marketing of accommodation in furnished private homes for short periods, an activity that, in Portugal, the law call local accommodation, especially when intermediated by digital platforms that promote it in a global market as business with cross-border potential that covers almost all every single country in the world2 . Yet, these advantages do not come without costs. Tourist activity generates externalities that cause social, urbanistic, and ecological imbalances, among others, and it is up to the States, through the legal instruments at their disposition to create compensations and balance mechanisms to protect the different legal rights and interests at stake. In economic terms, there has been a marked trend towards a change in the destination of housing stock in urban centres, which has been transformed from household places into accommodations for temporary use, for short periods, mainly for tourism purposes, whether managed in tourist resorts or local accommodation establishments. 2 Feliu, 2020, p.170.
International Journal of Tourism, Travel and Hospitality Law One of the tasks that falls to the State is to guarantee the protection of the local population, living often in the same building, together with the exploration of these activities, having to endure changes in their lives and the inconveniences that come from sharing private spaces with short staying strangers, with habits and lifestyles radically different from the existing population, sometimes implying changes at the level of personal relationship, difficulties in verbal communication, disturbances in terms of noise, tranquillity or perception of security. The issues of protection of neighbourhood relations take on greater importance in local accommodation establishments operating in multi-family dwellings, where there are also issues arising from the proximity of contacts or the shared use of common spaces and facilities (stairs, lifts, entrance halls, parking spaces, etc.), requiring regulation of a private and/or administrative legal nature. In the commercialization of accommodation in tourist resorts, the protection of the neighbourhood is duly safeguarded, due to the existence of a coherent and professional exploitation which is the object of a specific licensing in order to obtain a special permit for touristic uses, as a specific precondition for such. In these cases, as the law expressly rules, the constitutive deed states that the premisses are fit for tourism purposes. The situation is different when we talk about local accommodation, bearing a "hybrid" legal permit of use for commercial and residential purposes, which implies some fluidity in the rules governing the activity, driving, questions and perplexities as to the solutions found. In this paper we propose an approach to the issue of neighbourhood protection in the activity of local accommodation. This has been one of the most challenging issues for legislators, legal doctrine, and jurisprudence in the various legal systems. Since we do not have the opportunity in this work to closely address the interesting discussions that have taken place in the various European States, namely in Spain, we will take as a case study the legal solutions recently adopted in Portugal and the disparity in jurisprudence, with special emphasis on the recent decision of the Supreme Court of Justice of 22.03.2022.
ISSN 2184-8793 ISSNe 2975-9056 I. Local accommodation - Nature of the activity In a first approach to the regulation of the activity of provision of local accommodation services, as in any economic activity, it is important to try to establish its commercial or non-commercial nature and to address the question of whether those implied in the activity should or not be considered as professional traders. Although we consider inappropriate to discuss, in this work, the theory of the commercial act and of who is or is not considered a trader, already widely discussed in the law literature and jurisprudence3, in the field of local accommodation the discussion if the activity practiced is commercial and if the person practicing it is a trader is fundamental to determine the legal nature of the activity and which rules should apply to it. Based on the principle, as decided by the CJEU in the Kamenova judgment, that the quality of trader is directly linked to the idea of professionalism of the exercise of the activity, after analysing the various forms through which this activity is exercised, we cannot find a uniformity in the used business models which allows us to state that there is a massive practice of acts of commerce performed in a professional manner, which qualifies all the subjects that provide the accommodation in the market as traders and their activity as commercial. Although we are sure that the exploration of a local accommodation establishment requires the gathering of a set of elements apt for the exercise of the activity, with a intention of obtaining an income, we are not so certain that all forms of exercise of this activity have a professional character, either by the frequency with which it is explored or by the lack of a lucrative purpose or by the turnover, which are fundamental assumptions to qualify any activity as commercial4 . This is the reason why the concept of prosumer is often used to qualify the accommodation provider5. Arising from the discussion on the nature of the local accommodation activity, the legal qualification of the use of the property for this activity is also discussed. The provision of local accommodation services has many similar characteristics to housing. However, on the other hand, 3 In this regard, the judgment of the CJEU-, Case C105/17, the Kamenova case, at https://curia.europa.eu/juris/document/document.jsf ?text=&docid=206437&doclang=EN, was important, in which the Court determined that for a person to be qualified as a "trader" within the meaning of the Unfair Commercial Practices Directive, he must act for a purpose "in connection with his economic activity or profession" or in the name or on behalf of a trader. The decision also states that the meaning and scope of the concept of 'trader' must be determined by reference to the concept of 'consumer', which designates any individual who is not engaged in commercial or professional activities. 4 Cf. Olinda Garcia, 2017, pp. 2-23. 5 See Tur Faúndez, 2020, 47-71 y Benavides Velasco, 2018, pp. 176 to 180.
International Journal of Tourism, Travel and Hospitality Law we find an activity that materially falls into the provision of a temporary accommodation service, usually for tourism purposes, which implies the exercise of a business activity and not a merely residential purpose. This issue has been much debated in the various legal systems, as a means of finding how this activity may be explored, in which properties and under what conditions, namely what material and legal requirements, the property must have to be considered suitable for access to the activity. In this regard, it is important to know which authorizations are required to carry out a use of this nature and the requirements such use imply. This is of fundamental importance when we are talking about buildings set up as horizontal property and in neighbours’ rights protection. The case of Portugal 1. Sources of law Portugal, like most countries, especially in Southern Europe, has had to deal with the expansion of Local accommodation by adopting legislation to regulate and contain it. Portugal addresses the phenomenon of the widespread of the Local Accommodation in 2008, by adopting the Decreto-Lei no. 39/2008, of 7 March, which created the legal concept of local accommodation as per the provision of temporary accommodation services in establishments that did not meet the legal requirements for specifically named tourist establishments. The only requirement to start was to register the business at the Municipality. Decreto-Lei no. 39/2008 was revoked and replaced by Decreto-Lei no. 128/2014, of 29 August, amended in April 2015 (Decreto-Lei no. 63/2015), in August and December 2018 (Lei no. 62/2018 and Lei no. 71/2018) and in January 2021 (Decreto-Lei no. 9/2021), which approves the legal rules for the operation of local accommodation establishments (RJAL). It is the legal regulation now in force. The activity of local accommodation turned into an autonomous category of accommodation, defined as the exploration of a local accommodation establishment directed to the exercise of an activity of delivering accommodation services by a natural or legal person. The registration of the establishment is the responsibility of the Municipality, by means of a prior conditional
ISSN 2184-8793 ISSNe 2975-9056 communication, addressed to the Mayor, who must order an inspection within 30 days to confirm compliance with the legal requirements. On 22 August 2018, under various political and social pressures and the lack of definition regarding the legal framework of local accommodation services, Lei no. 62/2018 was published, with the aim of introducing some restrictions, in the civil and/or administrative sphere, to the expansion of this activity, particularly in some critical areas of the cities and, with interest on our study, to protect the neighbours. This regulation has created an instrument to respond to the reactive movements of condominium owners, in the case of local accommodation exercised in autonomous fractions or in part of urban buildings susceptible of independent use, to enable the owners representing more than half of the ownership percentage of the building, the right to oppose the exercise of the local accommodation activity in determined fractions, "making their decision known to the Mayor". This amendment introduced by Lei 62/2018 have, in our view, technical weaknesses, to the point of bordering unconstitutionality. 2. Protection of neighbours Portuguese law dictates specific rules for the protection of neighbours, namely: a) Capacity limitation in flats, prohibiting the exploitation by the same owner or exploitation holder of more than nine flats, per building, if that number exceeds 75% of the fractions existing in the building (article 11.4). b) Maintenance of an information book on the operation of the establishment that, among others, provides a set of rules on noise and care to be taken to "avoid disturbances that cause nuisance and affect the peace and quietness of the neighbourhood" (Article 11.6). In the case of collective use buildings, this book should "contain the condominium practices and rules that are relevant to the accommodation for the use of common spaces" (Article 11.7). c) Option of the condominium to create a “special contribution” corresponding to the additional costs of using and maintenance of the common parts of the building, with a limit up to 30% of the value of the annual contributions. This rule refers to the assumptions of the division of the costs and fruition of the common parts of the building in horizontal property, established in Article 1424 of the Civil Code, which is based on the principle of
International Journal of Tourism, Travel and Hospitality Law division of costs between the unitholders proportional to the respective fractions or with the option of an added contribution in cases of exclusive use or greater fruition by some unitholders. This option must be based on specific rules that establish the criteria to justify these higher costs. In the specific case of local accommodation doubts may arise as to the objective criteria for such imputation, the greater or lesser use of the common areas may depend on the form and intensiveness6 the establishment is exploited. The condominium may only establish as a criterion the number of guests that annually use the establishment, which implies the disclosure of these numbers by the owner. d) Presentation with the registration application of the minutes approving the exercise of the activity by the condominium in the case of hostels (Article 6. f)) Other rules have a wider scope of protection which includes the various persons in contact with the local accommodation establishment, also including the neighbours. Such as: a) The compulsory existence of civil liability insurance covering the risks of fire and damage to property and personal injury caused to guests and third parties (Article 13-A.2). b) The objective liability of the establishment’s owner for damages caused to guests and third parties resulting from the provision of accommodation services (Article 16.3). c) The stipulation and advertising of opening hours (Article 19.1). d) The reservation of access to and stay in the establishment to guests and their guests (Article 19.3). e) The possibility of "refusing access to the establishment to those who disturb its normal operation and/or disrespect public order, failing to comply with the applicable rules of urbanity, operation and noise" (Article 19.4). 3. Permit of use It is, also, of interest to look at the requirement of the mandatory permit of use or a valid title of use for the property and the existing debate around this assumption when connected to the nature 6 We know that local accommodation establishments are operated in very different ways, from professional operations that operate all year round to periodic or sporadic operations at certain times of the year, there may even be several units owned by different owners in the same property with different types of operation and, for this reason, they must contribute to the expenses of the common areas in different proportions.
ISSN 2184-8793 ISSNe 2975-9056 of the use of the property or fraction. Until 2014, article 3.1 of Portaria no. 517/2008 only stated that unless installed in properties built prior to 7 August 1951, the registration of local accommodation establishments presupposed authorization of use or a valid title of use for the property the confirmation of which was a on charge of the Municipality of the respective area. With the reform carried out in 2004, article 6.1.a) now requires that the mere prior notification includes information on the property's use authorization or valid title and that the statement of responsibility, signed by the establishment's owner, must expressly state that the "suitability of the building or its autonomous fraction for the provision of accommodation services is ensured, and that it complies with the applicable legal and regulatory norms", which implies that the building’s permit of use is valid. Being a typical access requirement of administrative law, which requires, for the safeguard of public interests, that the competent authorities supervise the safety and salubriousness of constructions, this requirement aims to ensure that the property in question has all the basic characteristics that allow the use of the building for the exploration of the local accommodation activity. To this study it is important to examine the existing debate in Portuguese literature and jurisprudence on the question of the local accommodation properties’ use nature, its reflection in the mandatory requirements for the activity and the safeguarding of the neighbours' rights. As there is no consensus as to whether the exploitation of the local accommodation activity embodies the exercise of a service provision with commercial characteristics or a residential use of the property, this divergence is reflected in Portuguese doctrine and jurisprudence regarding the nature of the permit of use required for this activity. We believe, with a major part of Portuguese literature7 , that the legislator does not demand that local accommodation should operate in properties or fractions with a specific use authorization, which expressly admits the activity in question. This is an activity expressly classified by law as the provision of services - temporary accommodation services to tourists - which, if the legislator had not determined anything in this respect, could only be installed and run-in buildings or fractions with average authorisation of use for services. The only thing the legislator requires in this respect 7 Oliveira, Passinhas and Lopes, 2017, pp. 32 and 33.
International Journal of Tourism, Travel and Hospitality Law is that the building or fraction where the establishment is to be installed has, from an administrative point of view, a "utilisation permit or other valid title" without reference to any specific use. This generic requirement that the building or fraction has a valid utilisation permit or title of use, irrespective of the use expressed therein (be it residential, commercial, industrial, etc.) signifies the legislator's intention to make it unnecessary to initiate a procedure to alter existing uses, the only concern being that the building or fraction where the activity is to be installed is legal, which is considered to be the case if it has a utilisation permit. In their comments to article 62 of RJUE8 , Fernanda Paula Oliveira, Maria José Castanheira Neves, Dulce Lopes and Fernanda Maçãs stated that: "However, the more recent trend has been for the legislator to establish legal compatibilities between activities of a different nature, making it clear that there is no need for alterations to the use permit whenever there is a desire to cumulate the exercise of distinct activities in the same location. This is the case with local accommodation, which is, by law, considered compatible with residential uses (the existence for the location of a valid use permit for the property being thus sufficient - paragraph a) of no. 1 of article 6 of Decreto-Lei no. 128/2014 of 29 August, as amended by Decreto-Lei no. 63/2015 of 23 April". If it is true that, until 2018, the legislator of RJAL only required that the building or autonomous fraction subject to exploitation in local accommodation had a use permit, without determining any specific use, with Lei 68/2018, article 6. 9. c) seems to indicate the requirement of at least an "adequate use", by allowing the territorially competent Mayor to oppose the prior communication in cases where there is "...lack of adequate authorization as per the use of the building". Did this rule enunciate intend to bring some novelty to the prior discussion that until then about the type of permit required for running the business? We do not believe so. Although the legislative technique can be criticised, we believe that the legislator still does not refer to any specific use for the establishments’ registration, namely in article 6.1. a), nor do we find any other indication that allows us to interpret the law as to search which use is considered "adequate"9 or even that it intends to determine any specific use. It seems that the legislator just wants to allow every use that fits to the very nature of the building without imposing any specific use as the "adequate" one. This adequacy will always have to be assessed according to 8 Oliveira et al, 2018, p. 477, in the same sense Teixeira de Sousa, 2020, p. 90. 9 In this sense, Teixeira de Sousa, 2020 p. 83.
ISSN 2184-8793 ISSNe 2975-9056 the characteristics required for using the building for local accommodation purposes, in a perspective of protection of the parties in relation and security of the legal transaction. The adopted position in relation to the nature of the use of the property or fraction which is the object of the local accommodation activity and the consequent authorisation required for such use is essential for the definition of the legal position and forms of protection of those who, mainly in properties with plural owners, the households coexist with the exploitation of local accommodation. 4. Resolution of neighbourhood issues a) Register termination by decision of the Mayor The Portuguese legislator introduced, in the 2018 revision of the RJAL, a provision to ease the reaction of owners of households in buildings coexisting with units of local accommodation, in case of abuses or misuse in the operation, that jeopardises the coexistence in the property. Article 9.2 of the RJAL reads that, wherever the activity of local accommodation is in course in a fraction or part of an urban building susceptible of independent use, the assembly of owners, by decision of more than half of all votes, may oppose to the practice of local accommodation in that fraction, the Mayor to be informed of the decision to enforce it. This decision must necessarily be motivated by the repeated and proven practice of acts that disturb the normal use of the property, as well as acts that cause nuisance and affect the rest of the occupants of the condominium. Although the legal provision covers fractions of condominium buildings and the parts of urban buildings susceptible of independent use, the power to oppose the exercise of the local accommodation activity corresponds solely to the assembly of condominium, a body which only exists in horizontal property. The frequent situation of apartment buildings belonging to a single owner, but not set up in horizontal property, although within the scope of the rule, falls outside the statute. The legal grounds for the decision of the owners' meeting are vague and indeterminate concepts, such as "acts that disturb the normal use of the building", or "acts that cause nuisance and affect the rest of the
International Journal of Tourism, Travel and Hospitality Law flat owners", which opens the field to arbitrary decisions or decisions driven by unclear and illegitimate interests of the flat owners attending the meetings. The powers the Law entitles the Mayor are all but clear. The decision to oppose the practice of local accommodation in the flat in question belongs to the assembly of condominium, which "informs" the Mayor of the resolution. However, it is the Mayor who decides on the "termination request". The condominium assembly does not make a request to the Mayor but informs him of its decision. The role of the Mayor seems to stamp the decision of the owners' meeting. The practical effectiveness of the legal right to a prior hearing of the counterparty in the determined cancellation of the local accommodation is, of course, null and void. The termination by the Mayor, following the decision of the condominium assembly, means that the property in question may not be operated as local accommodation, "independently of the respective entity, for a period fixed in the decision, up to a maximum of one year". It should be noted that one thing is a flat or flats in a building in horizontal property and another thing is "the property". The property is the building, but not each one of the parts corresponding to each apartment. Each one of the flats, from a legal point of view, a component part of the property. Furthermore, the norm enunciation states that the prohibition of exploration of local accommodation activity applies "independently of the respective entity". This can be interpreted as meaning that, during the period of prohibition, the exclusion applies to the entire building (the property) and to all owners (regardless of the respective entity). However, the decision of the owners' meeting refers to one or more units where the events have occurred and not to the entire property. The application of the sanction of ceasing the activity of the local accommodation for a maximum period of one year raises another question: can the owners' meeting at the end of the period of prohibition reiterate the decision to oppose to the practice of local accommodation activity in the same flat and/or by the same owner, adding further periods of prohibition to the initial period, specifically on the grounds that the operation of the local accommodation activity in itself is a source or may be a source (prevention of risks) of disturbance of the normal use of the building, or of nuisance or disturbance to the rest of the owners of the flat? From the point of view of effective judicial protection other doubts remain: which jurisdiction protects the rights of the various parties involved: the civil jurisdiction, who rules conflicts between owners and between the board of the condominium and the owners, or the administrative jurisdiction, who rules conflicts between individuals and municipalities, represented by the Mayor?
ISSN 2184-8793 ISSNe 2975-9056 The question of jurisdiction is even more important because the Portuguese judicial system is organized into two entirely separate jurisdictional systems, the common and the administrative and fiscal, with two separate Supreme Courts - the Supreme Court of Justice and the Supreme Administrative Court. The rules of Article 9.2 and 3 of the RJAL defy constitutionality for several reasons. Firstly, the prohibition of the exercise of the economic activity of local accommodation is a sanction, either civil (decided by the owners' association and communicated to the Mayor) or administrative (decided and applied by the Mayor, "without prejudice to the right to a prior hearing"); secondly, the sanctions seem manifestly disproportionate if they apply to the whole building and to all the owners, whether or not they are guilty of misuse of the building or of causing nuisance, which motivated the owners' association's decision; thirdly, the task of the Mayor is clearly that of settling a conflict between certain named owners of flats in the building and the community of owners, establishing valuation guidelines on vague and indeterminate concepts, making judgements or assessments on the evidence presented and grading and applying financial penalties. This is clearly a jurisdictional function reserved, by the Constitution, to the courts, so that the practice of an act of a jurisdictional nature by a service or organ of the Public Administration is null and void, due to usurpation of powers, in violation of articles 111.1 and 202.2 of the Constitution of the Republic. The legislator has created a "hybrid" instrument of public/private law, which raises many doubts as to its clarity, effectiveness, and pursuit of the effective protection of the Rights of all those involved. The use of Public Administration bodies and services, in this case the municipal administration, to settle disputes between individuals is not the most viable way to promote a relationship of trust and proximity between the Administration and citizens, which is the basis for cooperation between civil society and the State10 and the construction of a democracy based on the widening of the availability of information and the viability of interactive debates, in which the voices of the different sectors of the population are heard. 11-12 10 Fukuyama, 1996, p. 34. 11 Sen, 2010, p. 16 12 From the record of the legislative process of Law 62/2018 of 22 August, we conclude, from the various bills submitted by the different political parties, the debate inside the parliament, and was of an exclusively political nature, with no intervention or consultation of entities outside Parliament itself.
International Journal of Tourism, Travel and Hospitality Law b) Limitation by the constitutive title of the horizontal property - Supreme Court of Justice of Portugal decision, dated 22.03.2022 In March, 22, 2022, the Supreme Court of Justice of Portugal has delivered a decision of uniformity of jurisprudence, published in the Diário da República of 10.05.2022.13 , drafted by the civil chamber of the Supreme Court of Justice, with a single dissenting vote. This decision follows conflictive previous decisions by the Lisbon and Porto Courts of Appeal and by the Supreme Court of Justice14, which decided, firstly, whether the local accommodation activity was intended for residential or commercial/service purposes and, secondly, whether the condominium assembly or the horizontal property regulations could prohibit the exploration of this activity in the fractions belonging to the respective property. Following the existent jurisprudence conflict, this decision of the Supreme Court of Justice has uniformized jurisprudence in the sense that: "In the horizontal property regime, the indication in the constitutive title that a certain flat is intended for housing must be interpreted in the sense that local accommodation is not permitted therein". The Supreme Court of Justice departs from the rule of Article 1418 of the Portuguese Civil Code which states, in paragraph 2, that: 13 Consultável em http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/20d9f9ea1114b78780258831003c9ded?OpenDoc ument , Accessed on 04.10.2022 14 It is not possible for us, in this study, to analyse each of the decisions handed down and which gave rise to the one under analysis, but they can be consulted in: TRP Ac., proc. no. 4910/16.5T8PTR-A.P1, http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/1ae9d39dd554c7f58025808f0059f8e0?OpenDocu ment.; TRL Ac., proc. no. 1579/16.0T8LSB.L1.8, http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/1be52b1b9ebc06b380258074005811e2?OpenDoc ument; STJ Ac. of 28.05.2002-02B 1432, www.djsi.pt http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/6f7c01eb322533d0802580f9004c4d45?OpenDoc ument; Ac. STJ, proc. no. 12579/16.0T8LSB.L1.S1, http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/6f7c01eb322533d0802580f9004c4d45?OpenDoc ument; Ac. TRP, proc no. 13721/16.7T8PRT.P1, http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/5da928ab1d855c548025812a005112c5?OpenDoc ument; Ac. TRP, proc no. 24471/16.4T8PRT.P1, http://www.dgsi.pt/jtrp.nsf/- /E504B901C699245E802582A3004E1BC6
ISSN 2184-8793 ISSNe 2975-9056 "besides the specifications set forth in the previous paragraph, the constitutive title may also contain, namely: a) Mention of the purpose for which each fraction or common part is destined". To consider that, as the exploitation of the local accommodation activity is a commercial activity, it cannot be exercised in a fraction that, according to the constitutive title, is solely intended for dwelling purposes, under penalty of violation of the provisions of Article 1422.2.c), which prohibits the condominium owners from using fractions other than the use for which they are intended. To rule this way, the Supreme Court refer to the jurisprudence of the Constitutional Court15, that stands for the need to respect the use intended for the fractions in the constitutive title, for reasons of proximity and communion and for reasons of public order, since it aims to ensure the protection of: "public and collective interests, relating to conditions of salubrity, aesthetics and safety of buildings, as well as aesthetic, urban planning and environmental conditions, which are even more pressing in large urban centres, where horizontal property buildings proliferate; this, in addition to the private interests relating to relations between condominium members, derived from the special nature of horizontal property". The decision considers that the defence of these interests requires the respect of the use stated in the title, giving examples of other jurisprudential decisions, such as that of the Supreme Court of Justice of 200216 , which states that: "as it is a residential property in which only one fraction is used as a "shop", it must be admitted that the intention was to guarantee the tranquillity of those living in the property and that, for this reason, it is important to give this notion a restrictive meaning Or the Coimbra Court of Appeal of 199417 , to the effect that: "Fractions which in the title deed of the horizontal property are intended for dwelling purposes cannot be used for the activity of beautician or for a medical practice". Based on these arguments, the decision concludes that: 15 Judgement 44/99, of 19.01.1999 - procº nº 682/97, in www.tribunalconstitucional.pt 16http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/49d36d347e79245780256bd0004a0735?OpenD ocument 17 Bulletin of the Ministry of Justice, 423, page 614.
International Journal of Tourism, Travel and Hospitality Law "As the autonomous fraction, according to the constitutive title, is destined to habitation, it cannot be given another destination (furnished accommodation for tourists) being to that effect irrelevant the licensing of the premises for the aforementioned commercial activity by those entities". This decision raises some perplexities. As already explained above, we do not believe that the practice of local accommodation can always be considered as a commercial activity, as it often lacks the character of professionalism. We understand that this reason, together with the existing communion between residential use and local accommodation, contrary to other commercial activities, was one of the reasons that led the legislator not to set any specific use for the exercise of local accommodation activity regarding the permit of use, thus allowing this activity in a property for residential use. Hence, although we do not confuse the administrative title that defines the use of the property or fraction, with the private law title that establishes the use within the fraction in that horizontal property, we consider that in both legal instruments the same public and private interests are underlying, for which reason we see no reason not to allow the exploration of local lodging in fractions that are intended, in the constitutive title, for dwelling18 . The single fact that it presupposes two separate and conflictive regulations, both civil and administrative, undermines the nuclear principle of any legal system, named the principle of the unity of the legal system. Taking Spain, for an example, most of the regulations of the autonomous communities admit the activity of local accommodation in buildings set in horizontal property if not expressly prohibited by the condominium, or establish restrictions on the tourist destination, such as Article 12.2 of Decreto 113/2015, of May 22, which approves the Reglamiento de viviendas vacacionales de Canarias; in a similar sense article 14.2. f) of Decreto 80/2015, of May 5, which approves the Reglamiento de viviendas de uso turístico in Aragón; article 41.5 of Decreto 12/2017, of January 26, of the Ordenación de apartamentos turísticos y viviendas turísticas de Galicia; or article 67.1 of Decree 10/2017 General de Turismo de La Rioja. The regulations in the Balearic Islands are more restrictive, the Palma de Mallorca City Council having even decreed the prohibition of the operation of local accommodation in multi-family 18 As would be the case if we were talking about activities such as urban renting.
ISSN 2184-8793 ISSNe 2975-9056 buildings. This decision was declared illegal by the High Court of Justice of the Balearic Islands, by decision of September, 10, 2021 (Proc. 00486/2021). Ley 8/2012, of 19 July, Ley del turismo de las Illes Balears, as amended by Ley 3/2022, of 15 June, reads: if the constitutive title or the statutes do not prevent the tourist marketing of local accommodation, it is necessary, in order to carry out tourist marketing, and only for this purpose, a condominium agreement with a positive vote of the majority of the owners, for this marketing, which must be entered in the land register and may be revoked by an equal majority. These rules follow the trend in Spanish jurisprudence on this matter, which initially held that the use of the term "dwelling" in the constitutive deed of the horizontal property was enough to interpret that this only made the purposes of residence, home or dwelling admissible, contradicting tourism purposes, being only compatible with the rental of a more durable dwelling. This jurisprudential position had, however, as from 2008, an evolution, followed by the doctrine, considering that for the condominium to prohibit the tourism use of fractions, it is necessary the constitutive title or the statutes to contain a clear and express prohibition, which will affect third party purchasers when entered in the land register19 . This majority position adopted in Spain is, in our opinion, more consonant with the sense we understand to guide the nature of the local accommodation activity. In fact, it seems to us that this was the intention of the legislator drafting the RJAL, both the creation of a specific instrument to deter abuses which jeopardize the normal use of the property and the requirement of authorisation of the condominium owners for the installation and operation of hostels. Going further, other questions can be raised: Can the condominium which at a given moment unanimously authorized the change of use of the property units in a horizontal property building from 'housing' to 'housing and local accommodation', go back on its decision and decide to prohibit the use of the units for accommodation? Or can the condominium assembly authorize, with a majority of the votes, the local accommodation operation in a fraction and not change the constitutive title? And in case of a positive answer, can that decision be revoked, and prohibit the accommodation operation, under the reason that the constitutive title is the sole source of the destination of the unit? 19 Mansilla, 2018, 332.
International Journal of Tourism, Travel and Hospitality Law This decision of the Supreme Court for jurisprudential uniformity refers to the norms of the Civil Code on horizontal property, without establishing the necessary compatibility with the "mixed public/private" procedure provided in the local accommodation regime and analysed above, which considers that: "This means constitutes only an administrative protection which, in addition to presenting a fragile guarantee of the exercise of condominium rights, does not even contemplate the protection of each participant in cases where there is a use of the unit different from the destination given to it by the condominium statute, nor the hypotheses of the condominium prohibitions of acts or activities violation, in the terms provided for, respectively, in sub-paragraphs c) and d) of number 2 of Article 1422 of the Civil Code, regardless of their degree of application and may come close to the protection granted to the condominium and not strictly speaking to the participants, limited to acts of disturbance similar to the type of acts provided for in Article 1346 of the CC". At last, if we bear in mind that a very considerable part of local accommodation establishments is operated in flats in buildings constituted in horizontal property and that, in the constitutive deeds, the fractions that are not intended for commercial use are generally marked as being intended for housing, we can foresee the hecatomb that is about to occur in local accommodation20 . Furthermore, it should be kept in mind that the alteration of the destination of each unit implies, as a rule, the alteration of the project approved by the municipality, in which the destination of each unit is stated, which implies the unanimous agreement of the neighbours. The now-published uniform jurisprudence ruling renders illegal most of the local accommodation establishments currently existing in Portugal.21 And it constitutes a major constraint for future projects.22 20 It is reported in the Portuguese press that there has been a large increase in the number of decisions by homeowners' associations prohibiting registration as local accommodation, since this ruling was handed down, https://www.dinheirovivo.pt/economia/ha-condominios-que-ja-estao-a-pedir-o-fecho-de-alojamentos-locais14900211.html, accessed on 04/06/2022. 21 It should be noted that the grounds of the judgment do not refer specifically to condominiums, but to all buildings whose declared use is as dwellings and which are registered in the National Register of Local Accommodation (RNAL). 22 This is, moreover, the basis of the dissenting opinion, which lucidly draws attention to the fact that "the established case law translates into the illegality of all local accommodation operations installed in autonomous fractions of buildings constituted in horizontal property intended for 'housing', even if they are registered and have a title of opening to the public, so that any condominium owner can separately demand the cessation of such activity, with the prospect of an avalanche of processes of this nature and a major disruption in this not inconsiderable sector of economic activity". With Manuel Atienza, we say: “Una vez más, conviene tener muy presente que “respuesta correcta” no es necesariamente lo mismo que “respuesta última” jurídicamente vinculante; y que, precisamente, uno de los fundamentos de la institución del voto disidente es contribuir a que, a medio o a largo plazo, las respuestas correctas logren ser también las respuestas últimas, las asumidas por el tribunal.” (Atienza, 2020, pág. 111)
ISSN 2184-8793 ISSNe 2975-9056 Conclusions: 1. Tourism, despite representing a strong economic and social development driver for countries and regions, has some externalities that national legislations have tried to control, through the creation of compensation and balance mechanisms to protect the various rights at stake. 2. One of the important consequences of the great development of tourism that has been seen are those related to the places that share public and private spaces with tourists, particularly serious in cases of local accommodation, due to the greater proximity and sharing of spaces between tourists and residents and in neighbourhood relations in properties constituted in horizontal property. 3. The Portuguese legislation that regulates the installation and exploration of local accommodation establishments provides some rules that protect the neighbours of properties and fractions subject to local accommodation, namely through the establishment and communication of compulsory rules of conduct to be followed by guests, that protect the neighbours and the liability of the owner of the local accommodation for all damages caused by guests or third parties and arising from the exploration of the fraction. 4. The RJAL also provides a specific mechanism through which the condominium owners can react against acts that disturb the normal use of the property, requesting, by resolution of the condominium assembly to the Mayor, the termination of the establishment's registration. 5. Such mechanism is, in our view, criticisable for several reasons. Namely, because it institutes a form of solution of neighbourhood conflicts by administrative act, which raises questions of constitutionality, since materially jurisdictional acts are practiced by the municipality Mayor. 6. We are also perplexed by the sentence issued by the Supreme Court of Justice on 22.03.2022, which unifies jurisprudence in the sense that "as the autonomous fraction, according to the constitutive title, is destined to habitation, it cannot be given another destination (furnished accommodation for tourists) being irrelevant for that purpose the licensing of the place for the aforementioned commercial activity by those entities (Municipal bodies)". 7. The basis for this decision has to do with the fact that local accommodation is considered a commercial activity and should not be confused with residential use, for which reason it should only be allowed to operate in those fractions in which the constitutive title states this use.
International Journal of Tourism, Travel and Hospitality Law 8. This decision does not consider the fact that local accommodation is a use compatible with residential use and cannot always be considered a commercial activity. On the other hand, given that many local accommodation establishments operate in buildings set up as horizontal property and that this decision applies to all fractions, even if legal and operating, which carry out this activity, this ruling generates the possible subsequent illegalisation of these establishments and an increase in conflict in the condominiums 9. This judicial approach, taken from a strictly formalist and conceptual perspective of the legal system, will lead to an outcome which in practical application generates an avalanche of devastating effects to which the judicial system remains indifferent. REFERENCES Benavides Velasco, P., Los sujetos (III): consumidores y usuarios ante el reto de la economía colaborativa, Gonsálbes Pequeño, H. (Dir,): Régimen jurídico de consumo colaborativo, Cizur Menos, 2018, pp. 176 to 180. Feliu, S, International Perspective: Requirements for access to the market of platforms in the vacation rental sector, Digital Platforms in Vacation Rental, Dir. FELIU, S, Editorial Reus, 2020, p.170. Fukuyama, F. Confiança, 1st ed., Gradiva, 1996 , p. 34; Bravo de Mansilla, G, Pisos turísticos y comunidades de vecinos: un posible caso de abuso de derecho, Viviendas de uso turístico: Régimen civil, administrativo y fiscal, Dir. Bravo de Mansilla, G, Reus, 2020, pp. 329-366; Atienza M., Una Apologia del Derecho y otros Ensayos, Editorial Trotta, 2020 pág. 111; Olinda Garcia, M, Short-term leases to tourists: an (improperly) named local accommodation contract, Electronic Law Journal, October 2017, pp. 2-23. Oliveira F, Passinhas S, Lopes D, Local Lodging and Use of Autonomous Fraction, 2017, Almedina.
ISSN 2184-8793 ISSNe 2975-9056 Oliveira, F, Castanheira Neves M. , Lopes D., Maçãs F., Regime Jurídico da Urbanização e Edificação Comentado, 4th Ed; Teixeira de Sousa P., "Restrictions of public and private law on the operation of local accommodation establishments - the Portuguese legal regime and the experience of comparative law", Almedina, 2020; Sen, A. , La idea de justicia, Almedina, 2010, p. 16 Tur Faúndez, M. "Los sujetos en el turismo colaborativo: Plataformes digitales y proveedor del servicio", Digital platforms in vacation rentals, Ed. Feliu, S., Reus Editorial, 2020, 47-71
Contact Estoril Higher Institute for Tourism and Hotel Studies carlos.torres@eshte.pt www.tourismlaw.pt IJTTHL Celebrating five years of the first publication Vincenzo Franceschelli, On Tourism Law | Quest for general principles, https://fles.tourismlaw.pt/On-Tourism-Law-Quest-for-generalprinciples/ Alejandro Corral Sastre, A new Administrative Law for a new Tourism: now or never, https://fles.tourismlaw.pt/A-new-AdministrativeLaw-for-a-new-Tourism-by-Alejandro-Corral-Sastre-/ Jonas Thyberg, The Package Travel Act and the Covid19 pandemic, https://fles.tourismlaw.pt/The-Package-Travel-Act-and-the-Covid19pandemic-by-Jonas-Thyberg/ Caterina del Federico, The use of artifcial intelligence in the travel and hospitality industry. Civil liability profles, https://fles.tourismlaw.pt/The-use-of-artifcial-intelligence-in-the-travel-and-hospitalityindustry.--Civil-liability-profles "We are celebrating the 500 anniversary of the discovery of the Magellan strait with two online publications. On October 21, the launch of Derecho del Turismo en Las Américas brought together colleagues from all Latin American countries. On the same day, the Collective Commentary about the New Package Travel Directive, with colleagues from the then 28 Member States. More recently, Competition Law in Tourism and Tourism Law in Europe are publications demonstrating this group's dynamism. The pandemic has not broken the bonds that have united and unite us. Here we are again here in Lisbon, more numerous and more motivated than ever, to consecrate what will be the voice of our group: The new international journal of Tourism Law, The International Journal of Tourism, Travel and Hospitality Law.” • Vincenzo Franceschelli, The Lisbon Group and International Tourism Law Five years after the frst international publication (The New Package Travel Directive, October 2017) at the ESHTE | INATEL International Conference in October 2022, bringing together 50 speakers from 27 countries, a new project was announced: The International Journal of Tourism, Travel and Hospitality Law (IJTTHL). IJTTHL brings together several universities and is published both in print and online. The central part will be in English but will have an IberoAmerican chapter, and the texts are immediately available through Pre-Print. Monika Jurkova, Liability of online platforms in the tourism sector, https:// fles.tourismlaw.pt/Liability-of-online-platforms-in-tourism-sector-Monika-Jurkova/ Francesco Torchia, Tourism enterprise and cultural heritage protection, as a legal instrument for valorization of the territory and of the person, https:// fles.tourismlaw.pt/Tourism-Enterprise-and-Cultural-Heritage-protection,-as-a-legal-for-valorization-of-the-Territory-and-ofthe-Person-by-Francesco-Torchia/ Valérie Augros, Holiday lettings in France: tips and tricks, https://fles.tourismlaw.pt/ Holidays-lettings-in-France---Tips-and-tricks-by-V.-Augros/ Sarah Prager, Competition law: online travel agents and airlines, https:// fles.tourismlaw.pt/Sarah-Prager,--Competition-Law---OTAs-and-airlines/ Andrej Micovic, Legal Tech and Online Dispute Resolution, https://fles.tourismlaw.pt/ Microsoft-Word---A.-Micovic---Legal-Tech-and-ODR-in-Tourism./ Pilar Juana Garcia Saura, The inspection of tourist accommodation by Public Administrations: problems with the use of the robot inspector (web spider) and the responsibility of collaborative platforms, https://fles.tourismlaw.pt/Collaborativeplatforms-in-accommodation-by-Pilar-Saura/ Michael Wukoschitz, A Wicked Deed’s Curse – Will X v Kuoni change the Organiser’s Liability?, https://fles.tourismlaw.pt/Will-X-v-Kuoni-change-the-organisers-liability,---M.-Wukoschitz/ Bertold Bär-Bouyssiere, Sustainability and Article 101(1) TFEU, Exploring (almost) virgin territory, https://fles.tourismlaw.pt/Sustainability-considerations-and-Article-101-TFEU/ Tatjana Josipovic, Modernisation of information requirements for consumers on online tourism services market, https://fles.tourismlaw.pt/Modernisation-of--informationrequirements-for-consumers-on-online-tourism-services-market-by-Tatjana-Josipovic/ Matija Damjan, The new online platform rules and the accommodation booking services, https://fles.tourismlaw.pt/The-new-online-platform-rules-and-the-accommodation-bookingservices-by-Matija-Damjan/ Ilie Dumitru, EU legislation and contractual relationship between the travel package organizer and the air carrier in case of charter fights. Liability for cancelled and delayed charter fights, https://fles.tourismlaw.pt/EU-legislation-and-contractualrelationship-between-the-travel-package-organizer-and-the-air-carrier-in-case-of-charter-fights.-Liability-for-cancelled-anddelayed-charter-fights-by-Ilie-Dumitru-IJTTHL-PRE-PRINT/ João Almeida Vidal, Arbitration and tourism: a feld to explore, https:// fles.tourismlaw.pt/Arbitration-and-tourism--a-feld-to-explore-by-Joao-Vidal/
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