Guarantee of alternative housing, the legal pre-emption right and supervision of habitability conditions
Decree-Law 89/2021 of 3 November (the "Decree-Law") came into force on 4 November and regulates key aspects of the Housing Framework Law (the "HFL", approved by Law 83/2019 of 3 September).
The HFL establishes the duty to regulate matters such as: (i) the obligations of public bodies regarding the guarantee of alternative housing, (ii) the terms under which these bodies have a legal pre-emption right in the sale of residential properties, (iii) the powers to supervise habitability conditions in the context of rented housing.
This Decree-Law therefore regulates important aspects of the HFL in order to increase the public housing supply.
The following are highlights of the new features introduced by the Decree-Law:
1. Further definition of the concept of the situation of actual homelessness and alternative housing
Under Article 28(6) of the New Residential Rent Support Scheme1 : "Households targeted for eviction with actual housing needs are first referred to legal solutions for access to housing or for provision of housing support".
This Decree-Law has therefore further defined the concept of the situation of actual homelessness to include people who do not have or are at real risk of losing their homes and who do not have any alternative housing. For this purpose, alternative housing cannot be housing that imposes a change on the household that existed before the situation of homelessness. The only exception to this is (i) if the change results from a written request, or (ii) if the written agreement of the applicant and of the member or members of the household with whom the public body has previously entered into a rental contract is obtained.
2. Further definition of the principle of effective use of housing through renting and subsequent sub-renting by the municipality
To increase the stock of properties suitable for housing use and with regard to properties located in urban pressure zones2, the Decree-Law implements a mechanism that allows municipalities to rent property, which has been submitted to a vacancy classification procedure, for housing use. The aim of this is, at a later stage, to sublet the property, depending on the needs of the area in question and the population.
Under Decree-law 159/2006 of 8 August3, the procedure for classifying a building or self-contained unit as unoccupied falls to the municipalities, which must ascertain the existence of the indications set out in that law. A building or self-contained unit is considered to be unoccupied if it has been vacant for one year, regardless of its state of maintenance. In that same Decree-Law, the following are considered to be signs of non-occupation:
- Absence of telecommunications, water, gas and electricity supply contracts;
- Absence of invoicing for water, gas, electricity and telecommunications consumption;
- Low water consumption4;
- Non-occupation of the property, certified by a prior inspection by the municipal council, carried out under Article 90 of the Legal Framework of Urban Development and Construction (Regime Jurídico da Urbanização e Edificação - "RJUE"5). This inspection can be carried out to order (i) the execution of works necessary to correct bad health or safety conditions, or maintenance works to improve the aesthetic appearance, (ii) the total or partial demolition of buildings that are in danger of collapse or pose a danger to public health and the safety of persons.
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1 Approved by Law 81/2014 of 19 December
2 "An 'urban pressure zone' is an area where there is significant difficulty in access to housing, due to scarcity or inadequacy of housing supply in relation to existing needs or because this supply is at higher prices than those bearable by the majority of households without them being overburdened with housing expenses in relation to their income" - see Article 2-A of Decree-Law 159/2006 of 8 August. The geographic delimitation of the urban pressure zone is the responsibility of the municipal meeting, under a proposal of the municipal council.
3 The legislation that regulates the classification of urban buildings or self-contained units as vacant, for the purposes of applying the municipal property tax (IMI) rate, and for the other purposes provided by law, in relation to housing, urban planning and urban rehabilitation policies.
4 (up to 7 m3/year) and electricity (up to 35 kWh).
5 See Article 89 and following of Decree-Law 555/99 of 16 December),
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.