Change of use of Indepenent Unit of an Urban Property”, em francês “Modification de l’allocation d’utilisation des bâtiments/fractions autonomes
Horizontal property is the property that affects the various components of a building, which must be able to form independent units (art. 1414 of the Civil Code).
We are faced with a complex real right that combines, within the scope of real rights, singular ownership, over the autonomous fraction, and co-ownership, over the common parts of the building (article 1420° of the Civil Code).
The institution of horizontal property is based on the assumption that each of the fractions resulting from the division does not have structural autonomy and only acquires functional autonomy through the use of parts of the building that are necessarily allocated to the service of other fractions (Pires de Lima and Antunes Varela, Annotated Civil Code, Vol. III, 2nd edn, page 393).
In the horizontal property regime – taking into account the “dualistic nature” resulting from the competition of two rights: full ownership over the private parts and “forced” co-ownership over the common parts – there are limitations on the condominium owners that do not fit into the property in general.
Therefore, from the outset, condominium owners cannot give their fraction “a purpose other than the use for which it is intended nor for any other activities that have been prohibited in the constitutive title” (Mota Pinto, Direito Reais, 1972, p. 274).
It is important to note that the constitutive title of the horizontal property, subject to land registration, together with the regulations, form the so-called “condominium regulatory statute”.
According to art. 1418.º, nos. 1, 2, paragraph a) and 3 of the Civil Code, the constitutive title of the horizontal property may contain certain specifications, namely those relating to the purpose for which each fraction is intended, given that, if this specification appears in the title, it must be coinciding with what was established in the approved project, under penalty of nullity.
On the other hand, the constitutive title can only be modified – except in the case provided for in article 1422.º- A (joining and dividing fractions) – with the agreement of all condominium owners, meaning that the use of a fraction for a different purpose of what appears in the title is prohibited without this requirement being met.
Furthermore, if the constitutive title states the end of each fraction, the change to its use can only occur by public deed or by an authenticated private document, and on the assumption, as mentioned before, that there is agreement by all condominium owners (article 1422º , no. 4, contrary to the wording introduced by Decree Law no. 269/94 of 25 -10 and 1419º, no. 1, of the Civil Code with the wording introduced by Law 8/2022, of 10-01 , effective April 10, 2022).
In this case, the administrator, on behalf of the condominium, may grant the public deed or prepare and sign the authenticated private document, as long as the agreement appears in the minutes signed by all condominium owners (article 1419, no. 3, of the Civil Code with the wording introduced by Law 8/2022, of 10-01, coming into force from April 10, 2022).
So how to proceed in practice?
It will be necessary to have a Minutes of the Condominium Assembly in a unanimous decision taken at the General Condominium Assembly to change the constitutive title of the horizontal property, Certificate from the Lisbon City Council authorizing change of use, submit Model 1 (IMI) to the Finance Department (in the case of a legal person, delivery must be made through the Finance Portal) and finally carry out a Deed of Change of Horizontal Property or sign the Authenticated Private Document. *
* This article is for informational purposes only and does not preclude the need for advice from a lawyer.