SUMMARY
Following the presentation of the program “Mais Habitação”, and after the Public Consultation regarding such program, the Portuguese Government have finally published the Law Proposal no. 71/XV/1.ª, including a proposal of concrete measures that, among others, intend to amend the legal regimes of the Alojamento Local (AL) and the lease of Real Estate and, also, the review of the Special Eviction Procedure (Procedimento Especial de Despejo e da Injunção) and Injunction in relation to leases of Real Estate.
INTRODUCTION
1. Following the presentation of the program “Mais Habitação”, and after the Public Consultation regarding such program, the Portuguese Government have finally published the Law Proposal no. 71/XV/1.ª, including a proposal of concrete measures that, among others, intend to amend the legal regimes of the Alojamento Local (AL) and the lease of Real Estate and, also, the review of the Special Eviction Procedure (Procedimento Especial de Despejo e da Injunção) and Injunction in relation to leases of Real Estate.
LOCAL ACCOMMODATION (ALOJAMENTO LOCAL)
2. The main proposals with impact to the AL are the following:
LEASE OF REAL ESTATE
3. In relation to the lease of urban real estate, the measures included in the proposal set out, essentially, the limits of the increase of the leases of real estate.
The protection of the tenants with lease agreements entered prior to 1990 is proposed.
In the context of the lease agreements referred above, if the tenant proofs that his/her rectified annually gross income (RABC) of his/her family household is lower than five annual minimum salaries (RMNA) or proofs that (i) is 65 years old or older or a disability with an established degree of disability of 60% or (ii) who has resided for more than five years in the leased premises, spouse, common law partner or relative of the tenant in the first degree of straight line, who is who is in one of the above-mentioned conditions the above-mentioned conditions, being the RABC of the family household lower to five RMNA, the lease agreement is not converted into the NRAU (Novo Regime do Arrendamento Urbano) legal regime, being the rent updated by reference to the annual rent update coefficient for the several types of leases, which is the result of the total variation of the consumer price index, without housing, corresponding to the last 12 months, calculated by the Instituto Nacional de Estatística, according to the provisions set forth in article 24 of the NRAU.
4. As for new leases of Real Estate, which have as their object properties covered by previous leases entered in the last five years, the criteria for establishing the amount of the rent are determined:
It is also proposed that the rent update coefficient to be considered for the year 2023 be 1.0543.
5. In the procedural scope, a revision of the Special Eviction Procedure (Procedimento Especial de Despejo e da Injunção) and Injunction in relation to leases of Real Estate is proposed, with the purpose of simplifying, speeding up and improving the functioning of these mechanisms, through the creation of the Tenant and Landlord Counter (BAS) and reinforcing the parties' guarantees, notably through the payment by the State of the rents due after the end of the opposition period, when:
VACANT PROPERTIES
6. The Draft Law provides for the inclusion in the Portuguese legal system, except for the Autonomous Regions, of a forced lease mechanism for vacant properties.
Urban buildings or autonomous fractions which are unoccupied for a period of two years are considered vacant.
In effect, evidence of this vacancy is the inexistence of supply or telecommunications contracts in these properties, as well as the inexistence of the correspondent invoicing in cases where the existence of such supply or telecommunications contracts is verified.
It is also important to point out that the Draft Law establishes a negative delimitation of the concept of vacant properties, with properties not considered vacant under the following conditions:
7. It is the municipalities that oversee the first impulse in the forced lease procedure.
In this measure, the municipalities, armed with the information that certain properties may be qualified as vacant, notify the owner of the duty to maintain his fraction, so that he may promote the execution of the necessary works, or of the duty to give use to the fraction.
Once the owner has been notified of the maintenance duty, if the owner does not carry out the works that are deemed necessary, the municipalities themselves will promote the execution of such works, and the reimbursement of the works will be made through the receipt of the rents due.
On the other hand, once the owners have been notified of their duty to put the fraction to use, the municipalities may immediately present a lease proposal.
The amount of the rent in the lease proposal may not exceed 30% of the general rent price limits per type according to the municipality where the property is located.
If the rental proposal is made and the landlord refuses or does not respond within 90 days and the property remains vacant, a forced lease will be in place.
Thus, if the property can be considered vacant, a mechanism is proposed that contains two lease relations: (i) the lease relation established between the owner of the vacant property and the municipalities; and (ii) the lease relation established between the municipalities and the citizen beneficiary of the measure.
If the municipalities do not wish to lease the property and if they do not need to undertake works, the power to activate the forced lease mechanism for vacant properties is transferred to the IHRU, I.P.
Finally, it should be noted that if municipalities waive the power to notify owners of vacant fractions of the duty to maintain the property or of the duty to put the fraction to use, the application of the aggravated rates of municipal property tax ceases, the proceeds of which constitute revenue for the municipalities.
CONCLUSIONS
8. The Draft Law presented by the Government includes a package of measures that will imply the amendment of the Legal Regime of Local Lodging and of the Housing Lease as well as the revision of the Regime of the Special Eviction Procedure and of the Injunction in matters of lease.
The proposed measures will now be discussed and approved by the Portuguese Parliament and may still undergo amendments.
In this sense, we will monitor their discussion and approval, which will allow us to assess the maintenance of the measures presented.
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Lisbon, april 24, 2023
Rogério Fernandes Ferreira
Marta Machado de Almeida
Patrícia Largueiras
Luís Almeida Brito
Frederico Ferreira da Silva
(Business Team)