In order to determine whether the use of an autonomous fraction (intended for housing) to operate a Local Accommodation (AL) violates the constitutive title of the horizontal property, the Supreme Court of Justice issued a standardizing ruling on March 22, 2022. of jurisprudence that has been considered controversial and controversial.

This decision states that “in the horizontal property regime, the indication in the constitutive title that a certain fraction is intended for housing must be interpreted as meaning that local accommodation is not permitted.”

Regarding this issue, it is important to note that under the terms of article 1418, no. 2, a) of the Civil Code, the constitutive title of an autonomous fraction contains, among other elements, a mention of the purpose for which that fraction is intended. This purpose may be residential or commercial, and must be respected as such, and it is prohibited to use the fraction for a purpose other than that stated in the constitutive title, as prescribed in article 1422, no. 2, c) of the Civil Code.

Thus, the discussion in question actually starts from a first fundamental question: does the activity of Local Accommodation integrate an act of commerce or the concept of housing?

Doctrine and jurisprudence are not unanimous on this point, with arguments supporting different interpretations.

It was understood in this ruling of the Supreme Court of Justice that from the point of view of the destination of the thing and its respective socio-economic condominium environment, a housing experience is different from its use in Local Accommodation.

In fact, it should be noted that in a Local Accommodation there is a rotation, randomness and temporary permanence of users, effectively incompatible with what occurs in a fraction intended for housing, which will always include a degree of certainty, continuity, security and familiarity absolutely distinct.

Nor is it possible to compare a user of Local Accommodation to a resident of an autonomous unit. Local accommodations are mostly sought after by people who are on vacation, looking to relax and abstract themselves from their daily lives, as any vacation presupposes. Unlike a normal resident, he goes to his apartment as part of his daily life, as part of his routine, looking for peace and quiet that is often incompatible with the relaxation, excitement and celebration of the users of a Local Accommodation.

On the other hand, it is also important to note that Law No. 62/2018 provides for the possibility for the condominium assembly to oppose, through deliberation, the exercise of Local Accommodation activity in autonomous units, based on the practice of acts that disturb the normal use of the building and acts that harm the rest of the condominium owners. This deliberation, moreover, could be the basis for the cancellation of Local Accommodation by the municipality.

Now, given that this protection exists in Law No. 62/2018, it seems precisely difficult to understand the STJ's decision, a decision based on the defense of condominium owners, who in truth, as far as the law states, were already protected by this means. The spirit of Law No. 62/2018, in fact, seems to result in the legislator's intention not to completely and from the outset prevent Local Accommodation in buildings on horizontal property, enshrining, however, to “counterbalance”, the admissibility of condominium owners' reaction to the Local Accommodation in circumstances that are harmful to them.

It is clear from this Ruling that standardizes jurisprudence that the installation of Local Accommodation in an autonomous fraction that, in accordance with the constitutive title of the horizontal property and in the absence of other legal elements, is intended for housing is prohibited.

Finally, it is worth talking about the applicability of this Judgment. It should be noted from the outset that the STJ's decision does not have the immediate and direct effect of changing the legislation on Local Accommodation, however, it will necessarily have an impact on the decisions that the courts will take regarding this topic, since An understanding different from that set out in this Judgment is not permitted. Furthermore, under the terms of art. 629, no. 2, subparagraphs c) and d) and art. 672, no. 1, subparagraph c) of the Code of Civil Procedure, an appeal will not be admissible in disputes in which the same fundamental question of law is at stake.

However, it should also be noted that this decision of the STJ does not prevent the constitutive title of the horizontal property and the condominium regulations from being subject to change, by agreement of all condominium owners, in order to allow Local Accommodation. *

* This article is for informational purposes only and does not preclude the need for advice from a lawyer.

Pursuant to article 1091 of the Civil Code 1, the lessee has the right of preference in the purchase and sale or donation in compliance with the location leased for more than two years and in the conclusion of a new lease contract, in the event of the expiration of his/her contract. because the right or legal powers of administration on the basis of which the contract was concluded have ceased. In other words, in a case where the owner of the leased premises intends to sell it, the lessee enjoys the right of preference in this transaction, and the same applies in the case of a payment.

In these terms, a communication must be made by the owner of the property to the tenant, in which the so-called “essential elements”, the sales project and the clauses of the contract must be transmitted, so that the communication for the exercise of the right of preference be considered valid.

A particular situation occurs when the landlord intends to sell the leased premises together with other real estate assets. When this happens, the landlord must also communicate to the tenant the price that is attributed to the leased property, as well as the other values attributed to the properties that it intends to sell together.

In this case, the landlord must claim that the separate sale causes him an appreciable loss, demonstrating this, under penalty of not being able to demand the joint sale of all assets.

The tenant's right of preference is a legal right of preference and is a potestative right, the exercise of which implies that the preferor is able to participate in the business under the terms under which the owner of the property intends to sell it to a third party.

In this matter, it is important to establish a barrier between the rules in force before and after the publication of Law no. 64/2018, of 29 October 2018 2 , as the aforementioned Law amended article 1091 of the CC , regarding the preemptive right of tenants in the purchase and sale of the leased premises.

In the previous regime, the law established a period of eight days for the tenant to exercise the right of preference. Within this period, not only should there be communication of the intention to exercise the right, but also the arrival of that same communication to the landlord.

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1 Hereinafter, CC.
2 Hereinafter, Law no. 64/2018.

Currently, the law provides a period of thirty days from the receipt of the landlord's communication, for the tenant, if he wishes, to exercise his right of preference. Under the old regime, the lessee would have preemptive rights in the purchase and sale or donation in compliance with the location leased three years ago. In accordance with the changes introduced by Law No. 64/2018, there is a right of preference for any tenant of an urban building, in the purchase and sale or donation in compliance with the location leased for more than two years. The changes made by Law No. 64/2018 obviously facilitate the real exercise of the right of preference by tenants.

With regard to leased buildings that are not subject to the horizontal property regime 3 , Law No. 64/2018 introduced new rules. When a lease contract for housing purposes is in question, the tenant of part of the building now has a right of preference under the same terms as those provided for the tenant of an independent fraction (article 1091, no. 8 of the CC).

The Constitutional Court declared, with general mandatory force, the unconstitutionality of the rule contained in no. 8 of article 1091 of the CC, as amended by Law no. 64/2018 4 , due to violation of no. 1 of the article 62.º 5 , that is, the right to property, in conjunction with paragraph 2 of article 18.º of the Constitution of the Portuguese Republic 6 , insofar as it excessively limited the
right to transfer properties during their lifetime, ending up not achieving the intended objective of facilitating the process of accessing their own housing for tenants.

The Constitutional Court considered this to be a limiting norm on several levels. As far as the owner is concerned, he could not, in that way, freely dispose of his assets, and the Constitutional Court considered this a disproportionate restriction on the right to property. The contractual freedom of the parties was called into question, as Law No. 64/2018 forced the existence of an agreement on the use of the common thing, to which no one would have consented, thus leaving private autonomy quite limited. The rule in question would also have a discouraging effect on investment.

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3 In accordance with the provisions of article 1414 of the Civil Code, “the fractions of which a building is composed, in conditions of constituting independent units, may belong to different owners under a horizontal property regime” and of article 1415 of the Civil Code. Civil Code, “only autonomous fractions that, in addition to constituting independent units, are distinct and isolated from each other, with their own exit to a common part of the building or to the public road, can be subject to horizontal property”.
4 Judgment of the Constitutional Court no. 299/2020, Process no. 984/2018, published on September 18, 2022, in https://files.dre.pt/1s/2020/09/18300/0000600038.pdf .
5 Under this article, “everyone is guaranteed the right to private property and its transmission during life or death, in accordance with the Constitution”.
6 This article provides that “the law can only restrict the rights, freedoms and freedoms guaranteed in cases expressly provided for in the Constitution, and restrictions must be limited to what is necessary to safeguard other constitutionally protected rights or interests”.

 

The Constitutional Court also understood that the rule under consideration violated fair compensation, as it provided for the fixing of the value of the fraction depending on the permillage, and the degree of natural light, the level of conservation, the views, the location must also be considered. , between others. The judges of the Constitutional Court carried out a balance between the right to property and the right to housing, understanding that the right to housing is always constitutionally protected, through the contractual form, to the extent that whoever acquires it will succeed in the rights and obligations of the lessor. (article 1057 of the CC).
Finally, in accordance with paragraph 9 of article 1091 of the CC, in relation to all lease contracts for parts of buildings that are not under horizontal ownership, whatever the purpose for which they are intended, tenants who so wish, if the landlord's intention is to sell the leased building, can exercise their preemptive rights jointly, acquiring, in proportion, the entire property in co-ownership.

Regarding the scope of application of the right to lease, the Supreme Court of Justice, when called upon to rule on whether there would be a tenant's right of preference in the case of an owner who gave an urban building leased for housing to a commercial company, and the respective tenant appealed to court intending to have this right recognized, in its Judgment of 16 November 2006 (proc. no. 06B3596), it completely clarified that the tenant's right of preference exists in the strict terms provided for in the Law, or that is, in the purchase and sale or giving in payment, and only and only in these
cases, dismissing the tenant's appeal.

* This article is for informational purposes only and does not preclude the need for advice from a lawyer.

This type of termination of an employment contract, as set out in article 10-A of DL no. 220/2006 of 3 November, may take place in cases of mutual agreement, as long as there are no situations involving a decrease in the level of employment. but first there are new hires with a view to strengthening the qualifications and technical capacity of companies. In other words, the employer reaches an agreement with the employee regarding his dismissal, but, in return, he will have to fill his job position through a new hire with the same or higher level of educational qualifications.

This legal solution entails advantages and disadvantages. It will be advantageous in cases where the termination of the employment contract cannot fit into a situation of collective dismissal, in cases where there is no just cause for dismissal or even in cases where the employer does not intend to see the job position extinguished. Here, upon termination agreement, the employer will be limited to paying the agreed compensatory amount.

On the other hand, this solution will imply the assumption of legal obligations for the employer, which will be obliged to comply with certain requirements so that the agreement concluded is not considered a willful violation, which could lead to the employer being obliged to the Security Social payment for the period during which the initial unemployment benefit is granted.

Therefore, in accordance with paragraph 2 of article 10.º-A of the aforementioned DL, if the employer intends to conclude this type of agreement, it will have to hire, by the end of the month following the termination of the employment contract, a worker through an open-ended, full-time contract to fill the aforementioned job position, which must necessarily correspond to the exercise of an activity of technical complexity, a high degree of responsibility or that presupposes a special qualification. It should be noted that paragraph 3 of the same article provides that the Social Security Services may inform the service with inspection competence of the Ministry responsible for the labor area, when they detect or suspect legal non-compliance with the provisions of article 10-A of the DL No. 220/2006.

It is also important to note that the granting of unemployment benefit is not only subject to compliance with the obligations inherent to the employer, but also to the exhaustive and cumulative fulfillment of legal requirements by the employee. In this sense, to be entitled to unemployment benefit, the worker must, for example, be a resident in Portugal, have had a job with an employment contract and have become unemployed for reasons beyond their control (involuntary unemployment), have paid into Social Security for at least 360 days in the 24 months immediately preceding the date on which you became unemployed, been registered/looking for a job at the nearest Employment Service and have applied for the benefit within 90 consecutive days (in a row) from the date of unemployment.*

* This article is for informational purposes only and does not preclude the need for
advice from a lawyer.

I – The Concept

A Legal Audit, also known as Due diligence, can be defined as a set of legal procedures aimed at obtaining, analyzing and verifying information and legal documents (in the sense of containing legal rights and duties).
Due Diligence (and here we are talking about legal Due Diligence, which is important to distinguish from financial Due Diligence, which comprises the analysis of financial and accounting information) usually occurs in the planning or monitoring phase of a negotiation for the purpose of acquiring rights (for example acquisition of a shareholding in a company, or acquisition of real estate). And it aims to answer an essential question: what is really being purchased?

There are several precautions to be taken when preparing and carrying out Due Diligence, which can be extended to
all parties (sellers or buyers), of which we highlight:

The art. 106 of the Insolvency and Business Recovery Code (CIRE) is presented as the
rule of the insolvency regime applicable to the promissory contract. According to paragraph 1 of art. 106th of
CIRE, in the case of insolvency of the promisor-seller, the insolvency administrator cannot
refuse to fulfill the promise contract with real effectiveness, a circumstance that binds both
parties to the conclusion of the definitive contract. We are faced with a special precept compared to the general rule
translated into art. 102 CIRE, according to which the insolvency administrator freely chooses the
fulfillment or not of ongoing business. However, this inadmissibility of refusing the
fulfillment of the purchase and sale promise contract depends on the verification of some
requirements, it is required, in particular, that the promissory contract in question has real effectiveness and that
there has been a tradition of the thing that is the object of the promissory contract.

In view of this regime, the doctrine has discussed, within the scope of the effects on ongoing business and
due to the frequency with which, in practice, the situation of promissory contracts is verified effectively
merely mandatory relating to an urban building or autonomous fraction. Having no real effectiveness, the
insolvency administrator is free to refuse compliance. Regarding this point, there are no
big doubts.

The fundamental question in this regard is whether, if the administrator refuses to comply,
the promisor-buyer who has obtained the thing's tradition, enjoys the right to receive the deposit in
double, in accordance with art. 442, no. 2 of the Civil Code, on the one hand, and on the other, benefits from the
qualification of your credit as guaranteed through the right of retention provided for in art. 755, no. 1, al.
C) of the Civil Code.

The art. 442.º, no. 2 of the Civil Code stipulates that the right to a double deposit presupposes verification
cumulative of three factors, namely:

– default by the debtor;
– verification of an unlawful non-compliance;
– and, finally, it requires that the unlawful non-compliance be attributable to the debtor.

The Supreme Court of Justice, systematically confronted with these questions, and with the
antagonism of decisions of the first and second instance courts, pronounced in two
important rulings standardizing jurisprudence.

In the first of them, the Judgment of March 20, 2014 (proc. 92/05.6TYVNG-M.P1.S1), the Supreme Court
Court of Justice opted for an extensive interpretation of arts. 442.º, no. 2 and 755.º, no. 1, al. C) of
Civil Code and art. 106th of CIRE. It understood that the requirement of non-compliance was attributable to the
debtor, included an indirect, mediate or reflex imputability, removing the concept of guilt to
come to mean causality.

But the Judgment does not directly address whether the refusal to comply by the
administrator grants the right to refund the deposit in double, or if, on the contrary, you only owe the
promising buyer receives the deposit back, in simple terms.

Regarding the right of retention set out in art. 755.º, nº1, al. f) of the Civil Code, the Supreme Court of
Justice opted for a restrictive interpretation, attributing the right of retention only to the promisor
buyer who is, at the same time, a consumer.

Detailing later, in the ruling that standardizes jurisprudence of February 12, 2019, proc.
(2384/08.3TBSTS-D.P1.S1-A), the concept of consumer for this purpose, which presupposes that the
property object of the promissory contract is intended for the private use of the promisor-buyer,
It does not include the exercise of professional or profit-making activities.

On April 27, 2021, the Ruling of the Supreme Court of Justice (proc. no. 872/10.0TYVNG-B.P1.S1-
A), came to declare itself for the removal of the regime of article 442º nº 2 of the Civil Code, and, therefore
refusing the right to return double the deposit from the promising buyer, which
one side seems to be justified, given that the administrator's conduct will not usually be illegal, for
another logically confers less solidity on the promisor-buyer who finds himself deprived of the
compensation to which he believed he was entitled when he signed the promissory contract.

It should be noted that this and other jurisprudence has been controversial, even within the country itself.
Supreme Court of Justice, and in the aforementioned rulings, several unsuccessful votes can be found,
which demonstrate the divergence of opinions and the complexity of this issue.

In view of what was decided in these judgments, the trend in jurisprudence is that, if there is a
tradition of the property, the credit of the prospective buyer overrides that of the mortgage creditor and always
If the prospective buyer is a consumer, the right to refund the deposit will be a credit
guaranteed by virtue of the right of retention.*

* This article is for informational purposes only and does not preclude the need for
advice from a lawyer.

 

Managers or administrators are responsible to society for damages caused to it
as a result of acts or omissions carried out by them in breach of their duties (legal or
contractual) to which they are subject, unless they prove that they acted without fault, as
results from article 72, paragraph 1 of the Commercial Companies Code (CSC). Therefore, under the terms of no.
2 of art. 71st, this responsibility is removed whenever managers or administrators prove to have
acted in informed terms, free from any personal interest and according to criteria of rationality
business

Thus, in accordance with paragraph 2 of art. 71 of the CSC, a business judgment rule is foreseen, a
rule according to which the decisions of administrators, within the discretion of the activity
of management of limited liability companies, are presumed correct, and it is up to whoever
wants to hold them responsible for the consequences of any non-compliance, prove that the
administrators in question have violated any of the duties to which they are legally or contractually (for
example, in the Company's Articles of Association) are obliged.

It is then worth asking: What is necessary to prove to activate the responsibility of
Quota companies or directors of public limited companies in this type of
non-compliance?

The business rationality that the letter of the law calls for materializes in decision-making
reasonable. But what is the criterion to define whether we are facing a reasonable decision? A decision will be
reasonable when the administrator has opted for a possible alternative, capable of serving the interests
of society. Conversely, whenever the decision that the administrator takes goes beyond the
corporate discretion, in such a way that it is not configured as rationally capable of
satisfaction of the Society's interest, there will necessarily be a breach of duties of care and
consequently responsibility of the administrator in light of art. 72.º, no. 1 of the CSC.

In other words, administrators immediately have an obligation to comply with the Law (including
the CSC, which provides for a wide range of administrative and even criminal offenses) and the Statutes
(including, carrying out acts that are included in the Object of activity defined by the partners). Any
administrator of a commercial company must assume the obligation to try not to waste the
social heritage (for example, acquiring a useless patent for the company or purchasing
worthless shareholdings). On the other hand, administrators must know how to guard against
disproportionate risk in relation to the Company's asset capacity, which translates into the circumstance of
The sustainability of society can never be jeopardized by a single poorly made decision,
(for example, investing 4/5 of the company's assets in the acquisition of high-risk shares).

Along these lines, Portuguese Law has understood that administrators have an obligation to
means and not necessarily results, your decision is not required to be a success, it is required
administrators must obtain reasonable information in the decision-making process and take
reasonable, sustained and appropriate decisions, avoiding decisions devoid of a
coherent explanation or plausible foundation.

This means that the Company that may wish to hold its managers and
administrators, must prove in a sufficient and unequivocal way that the decision in which the
responsibility is assessed, it was a decision devoid of business rationality, under the terms
previously exposed. *

* This article is for informational purposes only and does not preclude the need for
advice from a lawyer.

 

All workers have the right to perform their work under conditions that respect their safety and health. Occupational safety aims to prevent accidents at work, through the identification, assessment and control of professional risks. In turn, occupational health aims to ensure the protection and promotion of workers' health.