Several media outlets recently aired a video showing a former athlete living in the São Conrado neighborhood of Rio de Janeiro assaulting a deliveryman. The condominium of the aggressor accused of racism reported that the episode was not isolated. Other occurrences had already been reported, which weighed in the decision, on April 12, to expel the condominium member, as it believed violent acts represent antisocial behavior.

Whether or not the defendant owns the unit she occupies is immaterial for the purposes sought by the condominium. The right to property is not absolute and is limited, for example, by neighborhood rights and condominium rules. Both a tenant, if the property is rented, and the owner himself can be penalized for inappropriate practices. This is because the legislation aims to curb abuses in the exercise of individual property rights, which could pose risks to the community in relation to safety, health, and peace.

Some factual circumstances, however, must be considered when analyzing whether the claim to expel a condominium member for antisocial behavior is valid. The first of these is the need for the conduct complained of to generate difficulty living in the building, considering the discomfort of the neighbors and possible media repercussions. Episodes that trigger demonstrations, for example, can obstruct access to the building, create difficulties for residents to come and go, and give the place a bad name.

It is then incumbent the condominium to impose the penalty provided for in its bylaws for inappropriate behavior. In the event of repeat offenses, article 1,337 of the Civil Code that, with a resolution of 3/4 of the remaining owners, the fine can be increased up to ten times the amount allocated to contribute to the condominium expenses, according to the seriousness of the faults. It is worth remembering that condominium members who have been fined have the right to challenge the penalty.

If the penalty, even if increased, does not have the expected effect of obliging the condominium member to avoid repeating the antisocial practice, a current in the courts has been using the Pronouncement 508 of the V Civil Law Working Group, held in 2012, to authorize as an extreme measure exclusion of the condominium member from the building. This must occur after a meeting that decides to file a lawsuit for this purpose, ensuring the guarantees inherent to due process of law and a broad defense.

These were the steps followed in another recent case of violence generated by racism, which occurred in a residential condominium in the city of São Paulo against a comedian. Earlier this year, the condominium filed an action seeking expulsion of the condominium member for antisocial behavior. The judgment in this case may serve as an important precedent for consolidation of case law on the subject.

Also because there is an interpretation in the Judiciary that the construction of Pronouncement 508 was not imported into the law, which is why expulsion of an antisocial condominium owner is not possible due to the absence of a legal provision. Thus, the only alternative for punishment of cases such as the one reported in Rio de Janeiro is application of successive fines, increased up to the legal ceiling.

The possibility of expulsion does not imply loss of ownership of the property, but rather the right to live together in the space. The condominium member vacates the property due to lack of social behavior appropriate for living in the condominium. If he is owner of the unit, he continues to have his other rights intrinsic to ownership - to enjoy and dispose of the thing - assets. In other words, an indirect sanction of the need to sell or lease the property is applied.

It is worth questioning, however, whether the repetition of harmful conduct and successive penalties are indispensable requirements for expulsion of the condominium member, when it comes to acts of violence, racism, and other serious and intolerant conduct. Currently adopted, this interpretation sometimes prevents severe or, above all, effective punishment of the offender.

The discussions promoted by this and other cases can be a path to positive changes in the debate on the exclusion of condominium members for racism in a deep and broad way. With the recent change in the Racial Crime Law in 2023 (Law 14,532/23) and gradual social advances, it may be that the Judiciary will adopt a more energetic response to finally curb repetition of this type of behavior in condominium life.