O condomínio e as relações de consumo

• Main Author: Ferreira, José Filipe
• Publication Date: 2019
• Format: Master thesis
• Language: por
• Source: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Download full: http://hdl.handle.net/10362/81724
• topic: propriedade horizontal; condomínio; administrador; partes comuns; direito do consumo; consumidor; Lei de Defesa do Consumidor; DL n.º 67/2003; carácter complementar das partes comuns; horizontal property; condominium; manager; common areas; consumer; Consumer Protection Act;; common property; complementing nature of the common areas; Direito

Synthetically, we aimed to discuss the possibility of condominium, as the group of tenants, benefiting from the consumer´s status in the relations and disputes with others than the tenants. This problem is raised mainly in the disputes concerning the common parts of a building and the acquisition and service agreements concluded by the condominium´s manager in its representation. We began with a brief analysis of the horizontal property´s juridical regime, limited to the matters that we consider most important to our issue. Here, we concluded that horizontal property´s object is complex, corresponding to the undetachable whole composed by the fraction of each tenant and the common parts of the building, one of the factors that made us see HP as a right in re ex novo, separated from the general figures of property and joint ownership or their cumulation, that the exercise of tenants´ rights must be done all combined, by the representation of the manager, authorized by the tenant´s assembly, or by mandatory joinder, and that the nature of the common parts is not always instrumental or accessory towards the fractions, regarding the change on the usual catalogue of common equipment existing in the buildings constituted in horizontal property. Subsequently, we discussed the main question of this dissertation, consumer´s law. After a brief incursion on the fundaments of this juridical field which autonomy is still questioned, we tried to accommodate and solve some of the questions that are raised in the interpretation of the legal concept for consumer (focusing on the subjective and teleological elements), specifically the one predicted in the Consumer Protection Act. In a nutshell, we´ve come to the conclusion that not always the destination given to a service or good relative to the common parts must be assessed towards the destination given by each tenant to his fraction. There are cases in which the use of a common part is autonomous and distinguishable of the one given to the fraction, wherefore that is the one we must attend. On the other hand, we defended that the destination of the fraction, the tenant´s qualification as consumer, mustn´t be assessed only attending the finality stated in the horizontal property´s incorporation deed, since the criteria that rule them are completely different. So, for example, not always to a fraction which finality is habitation will correspond a non-professional use by the acquirer. Lastly, we distinguished the cases in which there is a good with different uses (professional and non-professional) by the various co-owners and the ones in which there is a person that gives both uses (professional and non-professional) to a good, concluding that the criterium of the prevailing use can´t be applied to those, once that would result in neglecting the rights of people to whom the law assigns an enforced protection due to their quality of consumer.