The condominium and the pets’ movement rules

Every condominium resident knows that the life in a condominium requires tolerance and consideration of others. Such attitudes aren’t just a simple liberality or a matter of good education, but enforcements of the Condominiums and Incorporations Law (LCI – Law 4.591/64) and at the Civil Code (CC).

Both of them impose to the residents the obligation to use their autonomous units (“apartments”) or the common areas according to the “good neighborhood rules”, “in a way that doesn’t cause damage or discomfort to others” or “exclude the utilization” by them; in a way that doesn’t “harm the silence, health and safety” of the other residents and, not less important, in conformity with the “good behavior”.

These behavior obligations are inherent to the exercise of the property right according to its social function (article 5, section XXIII, Federal Constitution).

Besides the normal conflicts because of parties, refurbishment, loud music etc, disagreements related to pets are becoming increasingly common.

Internal regulations seek to rule the circulation of the residents accompanied by their “best friends” through the common areas of the buildings. These internal rules are based on the “norms good neighborliness” and also aim at the “quietness, health and safety” of other residents.

But what if the non-observance of these coexistence rules results in nuisance or harm to another condominium or third party – a guest, for example? It is possible to think in examples such as dirt in areas that aren’t allowed to circulate, such as social lift, as well as in extreme cases such as a bite of a large dog. In these cases, in addition to the violating resident, can the condominium be responsible?

At the first moment, it is understand that no. The question refers, technically, to the legal institute of civil liability.

The condominium can be understood as the community of people who owns the property on autonomous units (apartments), with exclusivity, and simultaneously on community spaces, in co-ownership, with rights and obligations of its “members” (residents) and to represent the common interests towards third parties.

Therefore, the condominium responsibility – which doesn’t have legal personality – necessarily matters in the responsibility of the “community”. This responsibility of the condominium for the damage caused by one of the condominium member is objective, that is, without subjective fault of the condominium.

For this, it is necessary a legal provision. The articles 931, 932, 936 and 938 of the Civil Code don’t support this; the LCI either. The Superior Court of Justice (STJ) has repeatedly stated that “the administration of the Condominium is in charge of the trustee, from this it isn’t considerate that this one is the responsible for all damages suffered by the condominium residents, especially those caused by intentional acts of third parties” (Special Appeal no.579,121/DF).

In a previous precedent, the STJ highlighted the point of the indiscriminate liability of the condominium for any damage that occurred on its premises: “In this case, there would be a forced socialization of risks. It is as if the condominium members were insurers of each other, although forced, because that wasn’t agreed” (Special Appeal no. 39,424-4/SP).

Therefore, it is understood that the condominium shouldn’t be responsible for damages caused by the antisocial behavior of a single resident, except in cases where there is “competing” fault.

An example of this last hypothesis would be the authorization given by the trustee to the condominium to pass "quickly" with his rottweiler by the playground, moment when the dog attacks a child who was playing there. In this example, it would be the responsibility of the condominium, since the trustee represents it and exercises its internal administration (article 22 of LCI and article 1348 of the CC).

Thus, your guilty act matters in the objective liability of the condominium. It is worth mentioning that it is up to the condominium member to apply a fine to the condominium that violates the rules of movement of pets, according to article according to article 1336, paragraph 2 of the Civil Code.

Rodrigo José Marcondes Pedrosa and Isabella Perez Censon
Chiarottino e Nicoletti