Post by account_disabled on Mar 12, 2024 23:12:56 GMT -6
Despite jurisprudence undergoing a transformation in the name of progress (with a tendency to relax and end restrictions on old subdivisions), it is not permitted to support the insensitive and mercantilist purposes of a business investor who, aware of the prohibition, still acquires the property and, Against everything and everyone, he installs a hairdressing salon and gourmet food annex, without authorization.
123RF
123RF TJ-SP prohibits hairdressing activities in residential properties
With this understanding, the 4th Chamber of Private Law of the Court of Justice of São Paulo prohibited the owner of a hairdressing salon from using a property located in a residential area of Piracicaba for commercial purposes, and must stop activities under penalty of a daily fine of R $10,000, up to a limit of R$2 million.
According to the records, the businessman B2B Lead acquired a property within a restricted subdivision (exclusively residential use) and transformed it into a hairdressing salon with a gourmet service area. The local residents' donkeyociation sought justice to maintain the residential character of the neighborhood.
Judge Enio Zuliani, rapporteur of the ruling, stated that, in the case in question, the right of the community, represented by the residents' donkeyociation, must prevail. According to the judge, in these disputes it is necessary to consider the reasonableness and proportionality of rights.
"The donkeyociation that appeals has an abstract right to control the legality of the constructions, as it represents the group of owners and this group does not want stores, hairdressing salons and other types of commerce to be installed", he added.
Zuliani said that the businessman simply adapted and renovated the property to operate a business where there are only residences: "This commercial purpose that is supported by profit and for its purpose filed an application (license) for residential purposes, hiding its real deliberation (changing the meaning for hairdressing salon with attachments selling bread, sweets, food in general)".
The rapporteur also spoke of "obstinate business adventure, which may even be justified by market law or tough competitive survival", but which is blocked by the principle of equality (article 5, caput, of the Federal Constitution). For him, there is no reason to make exceptions to the businessman's situation because this would represent an offense against equality. The decision was made by majority vote, in an extended trial.
The selected rapporteur, judge Marcia Dalla Déa Barone, was defeated. She dismissed the donkeyociation's request to prohibit the operation of the defendant's beauty salon as unfounded. According to the judge, a more recent municipal law allows the exploration of “housing support services and commerce”, which demonstrates that there is no exclusivity regarding the strictly residential use of the subdivision.