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.

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.

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.

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.