Can the Condominium prevent changes in residents during the pandemic?

This happened in the North of Ilha/SC, where, after being prevented from entering her apartment to move, a resident sought the judiciary. The understanding of Judge Ana Luisa Schmidt Ramos of JEC do Norte da Ilha/SC in case No. 5003619-30.2020.8.24.0090/SC was for the impossibility of this prohibition. Let's understand the case better?

The Case:

The author is the tenant of an apartment in a condominium in Santa Catarina with a contract in force until July/2020. With the COVID-19 pandemic , the tenant decided to spend the quarantine period with her partner who lives in another apartment in order to reduce expenses during the recession. The author tried to enter her apartment along with helpers to carry out the move and remove her belongings, but she was prohibited by the doorman who claimed: order of the syndicate for sanitary reasons, in view of the pandemic.

With the denial, the plaintiff decided to seek the judiciary, where she obtained through an injunction authorization for free and immediate access to the apartment.

For the granting of the injunction, the judge based on three articles of the Civil Code: 1314, 1331, §4 and 1335, I. In short, these articles defend that the unit owner can use, enjoy and freely dispose of his units and that no real estate unit may be deprived of access to the public place.

Art. 1314: Each unit owner can use the thing according to its destination, exercise all rights compatible with the indivisibility, claim it from a third party, defend its possession and alienate the respective ideal part, or record it.

Art. 1331, § 4: No real estate unit may be deprived of access to the public street.

Art. 1,335: The unit owner 's rights are: I - to use, enjoy and freely dispose of its units;

The judge also alleges that there is no plausible justification for preventing the tenant from entering the apartment since her contract is still in force and there is no legal provision forbidding the carrying out of a change.

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In Law n. 13979/2020 and in State Decree n. 525/2020 of Santa Catarina, which bring measures to deal with the public health emergency resulting from the coronavirus, there is no impediment to carrying out changes in condominiums. As the provisions in the Decree section 4 just a guideline and not a fence.

The Dra. Ana Luisa Schmidt Ramos finally stresses that "the impediment to change by act of those who exercise the trustee function, finds no support in law." And as we know, the role of the liquidator is listed in article 1348 of the Civil Code.

Art. 1,348. It is up to the liquidator:

I - call the joint owners' meeting ;

II - represent, actively and passively, the condominium, practicing, in or out of court, the acts necessary to defend common interests;

III - immediately inform the assembly of the existence of judicial or administrative proceedings, in the interest of the condominium;

IV - comply with and enforce the convention, the internal regulations and the determinations of the assembly;

V - ensure the conservation and custody of the common parts and ensure the provision of services that are of interest to the owners;

VI - prepare the budget of income and expenses for each year;

VII - charge the joint owners for their contributions, as well as impose and collect the fines due;

VIII - render accounts to the meeting, annually and when required;

IX - carry out insurance for the building.

1 The meeting may invest another person, in place of the trustee, in powers of representation.

2 The trustee may transfer to another, in whole or in part, the powers of representation or administrative functions, upon approval by the assembly, unless otherwise provided for in the convention.

In short, the condominium cannot prevent the carrying out of changes, the entry of furniture or helpers, if the unit owner is obeying the rules established on days and times in the Internal Regulation and observing sanitary and hygiene standards.