It is not uncommon for condominiums, consisting of both residential and commercial units, to have one or some of their units, namely those destined for commerce, occupied by entities that carry out activities with a purpose other than that for which the unit is licensed. The most frequent case is the one of the shops, or units destined for commerce, where at a given moment they start to operate as restaurants business.
It should be borne in mind that the term “commercial establishment”, which is often used in horizontal property titles, implies an activity of mediation and exchange of goods and services, which naturally excludes industrial processing activities. According to that understanding, the abovementioned expression therefore does not cover restaurant business.
Such activity, as it involves the food preparation and confectionery, generates noises and smells that may affect the other units, especially those of residential purpose, justifying that, due to such impact, use of the unit for this purpose is subject to the approval of the Assembly of Condominium Owners.
As a general rule, the use of each condominium unit is determined in the title constituting the horizontal property, being forbidden to the owners of the units a use other than the one to which they are destined, as provided by article 1422, paragraph 2, c) of the Civil Code.
If the title constituting the horizontal property does not determine the use for each unit, in paragraph 4, it stipulates that the alteration of its use will require authorization from the Assembly of Condominium Owners, approved by a two-thirds majority.
On the other hand, where the term expressly refers a purpose for which each unit is intended, a different use for same unit may only operate by modifying the title constituting the horizontal property itself, which must be approved unanimously in a meeting of joint owners, pursuant to the provisions of article 1419 of the Civil Code.
Thus, when the constitutive title is silent on the use of each of the fractions, an approval of the joint owners, by a two-thirds majority, will suffice, for the installation of a restaurant business.
When, however, the title constituting the horizontal property expressly determines the use of the unit, but does not expressly mention the industrial activity or restaurant business, for example, the alteration of this use can only be made by alternating the title itself, which requires, as we have seen above, the unanimous approval in Assembly of Condominium Owners.
João Pedro Barroso | PRA – Raposo, Sá Miranda & Associados in Vida Económica