Empty houses and desomething houses: after all, what is at stake?

Increasing the supply of homes to rent in the country is one of the objectives included in the "More Housing" program presented by the Government. For this, the Executive of António Costa wants to impose the mandatory rental of dear homes – in practice, the owners of these properties may have to be forced to rent the house to the State, which will then sublet it at an affordable income price. There are several exceptions in the law, but the subject continues to generate great controversy. After all, what's at stake?

What does the government's proposal say?

Compulsory rental of devoting homes

In the document "More Housing", in public consultation until March 10, the Government says that "the State can mobilize returnees, for reasons of public interest, through leasing by public entities, with the respective payment of rent to the landlord".

To which houses does coercive lease not apply?

The measure does not apply to:

• holiday homes;
• homes of emigrants or persons displaced by health reasons and professional or formative reasons;
• homes whose owners are in a social outfit as a home or are providing permanent care as formal caregivers.

How's that going to work?

The forced lease, "a term already in the law", as explained by the Government, "presupposes the existence of a prior legal duty to make use of the property. That is: the duties of the owners are, in themselves, restrictions on the right to property. That duty has been enshrined in law since 2014 (article 14(2)(a) of Law No 31/2014 of 30 May)".

In the proposal formulated, the first step is, in cases where it is identified that a particular house is deceit (and not fitting in the exceptions mentioned) "and whenever there is demand for a property with those characteristics, it is proposed, first, that the owner can freely conclude a lease  of the property with the IHRU, freely establishing the conditions of such contract."

Owners will have deadline to make use of the property

As the proposal explains, and if the owner does not want to rent to the State, a formal deadline will be given to give use to the property – which has not yet been defined. Only when this period ends can the State rent the property compulsorily, taking into account the public interest that is specifically determined – "either by reason of failure to comply with the duty to use the property by its owner, both by the social function of housing and duty of use, principles also enshrined in Articles 4 and 5 of the Housing Bases Law", according to the Government.

After all, what is a dealine house? And empty?

 According to the Housing Bases Law (Law No. 83/2019), housing that is unjustified and continuously, during the period defined by law, without effective housing use, for reasons attributable to the owner, is considered devoluta.

"Second homes , emigrant housing and displaced persons' homes for professional or health reasons" are not considered devotees, and are justified reasons for the effective non-use of housing, in particular, "the performance of works duly authorized or communicated, during the deadlines defined for them, or the pending legal action that prevents such use".

It is also recalled that the classification of devoluted property appears in the decree-law no. 67/2019 of May 21 - which worsens imi on this type of building -  and says that an urban building or the autonomous fraction that for a year is unoccupied is classified as return:  

• In view of the absence of contracts in force with telecommunications and water, gas and electricity supply companies;
• if there is no invoicing for water, gas, electricity and telecommunications consumption;
• in view of the cumulative existence of low water and electricity consumption, considering as such the consumption so, the relative invoicing of which does not exceed, in each year, consumption exceeding 7 m3 for water and 35 kWh for electricity;
• Moreover, says the law, the existence of consumption higher than those provided for, "does not rule out the possibility of the property being classified as devoluto, namely through inspection".

The urban building or autonomous fraction is not considered to be devoluto:

• Intended for short-term housing in beaches, countryside, termes and any other places of vilegiatura, for temporary rental or for their own use;
• During the period in which rehabilitation works take place, provided that they are certified by the municipalities;
• The completion of construction or license issuance of use occurred less than a year ago;
• d) Acquired for resale by natural or legal persons, under the same conditions as Article 7 of the Municipal Tax Code on Onerous Real Estate Transfers, approved by Decree-Law No. 287/2003 of November 12, as well as acquired by the entities and under the conditions referred to in Article 8 of the same Code, provided that, in any case, they have benefited from or benefit from the exemption from the municipal tax on onerous transfers of real estate and during the period of three years from the date of acquisition;
• That is the residence in national territory of emigrant Portuguese, as defined in Article 3 of Decree-Law No. 323/95 of 29 November, considering as such their tax residence, in the absence of another indication;
• That is the residence in national territory of Portuguese which performs functions or commissions of a public nature abroad at the service of the Portuguese State, international organizations, or functions of recognized public interest, as well as their respective authorised companions;
• Integrated in a tourist resort or registered as a local accommodation establishment;
• Whose consumption provided for in Article 2(2) (c) is not affected due to the objective impediment to the use of the property, in particular due to a legal dispute over its possession, due to the verification of any of the grounds provided for in Article 1072(2) of the Civil Code or for reasons of training provide permanent care as an informal caregiver or stay in social equipment, provided that it is duly proven.

"An empty house is a dedevotion house," says Minister

The definition of a devotee house and an empty house has therefore raised several issues, but the Minister of Housing, Marina Gonçalves, clarified, in an interview with SIC News, that "an empty house is a devotee house", even if it is in good condition. So if one has been closed for a year or two in the center of Lisbon is considered a desomething house? The minister assures me that she does.

"In legal terms is considered deceit, it has is a procedure to be identified as such. It already exists in the law this procedure. It is the camera that makes this identification.  it is a house that must be put at the service of the use for which it was created", stressed the responsible, ensuring, however, that the "State will not enter the people's house and will expropriate".

Isarrendamento coercive or not unconstitutional?

The "More Housing" program has fallen as a "bomb" in the real estate sector, and since then there has been a shower of reactions to the measures – and from all quarters. The coercive lease is at the heart of the controversy, and doubts have even been raised about its constitutionality.

Hours after presenting to the country the new legislative package for housing, on Thursday, February 16, 2023, the Prime Minister, António Costa, said in an interview with the Journal of 8 TVI that "it is not legitimate to have empty houses", refusing any existence of unconstitutionality in the rule, and stating that "coercive works have been in law for many years and have never been considered unconstitutional."

In an interview with the RTP program, "Tudo é Economia", the Minister of Housing, came to reinforce the words of António Costa. The person responsible guarantees that the mandatory rental of homes is constitutional and also said that it is the duty of the owners to use the houses. The governor stressed that it is an "instrument for the moment when someone does not want to rent the property when there is a duty to use the property", and recalled, however, that the owner can "simply explain that it is not used because it is waiting for a use license they are not." The minister stressed that "there are valid arguments for the owner to say that he will put it on sale or rent".

Several jurists contacted by ECO Advocatus consider, on the other hand, that the "administrative possession" of the state of private real estate is a "restriction on the right to property" and "clearly unconstitutional".  For constitutionalist Jorge Bacelar Gouveia, heard by the publication, for example, "coercive leasing is a violation of the essential core of the property, because it cuts the possibility of disposing and administering the property", being a measure "completely arbitrary and disproportionate". Paulo Otero, professor and constitutionalist, shares the same opinion. "The obligation to place houses in the housing market can only be encouraged by the State, for example, through fiscal measures, taking into account the social function of private property. It cannot, however, be the subject of coercive or forced leasing. The Constitution only admits this in the face of means of production to abandonment", he explains. 

Sérgio Sousa Pinto joined those who disagree with the government's proposal, which aims at compulsive renting of dealling homes. The CNN commentator, and deputy of the Socialist Party, agrees that this measure risks being unconstitutional.

Administrative ownership of houses in Europe

Administrative ownership of houses is a reality in several European countries, such as Denmark or the Netherlands. Measures of this nature exist and this type of practice is allowed, as explained by the newspaper Público:

• In Denmark, when a house is empty for more than six months, the municipality where this house is located has the power to force the owners to place the property on the rental market;
• In the Netherlands, homeowners are required to report to the municipal authorities whenever a residential property is empty, and rules and deadlines vary from city to city. In Amsterdam the law does not allow a house to be empty for more than two months;
• In the UK,  local authorities can take ownership of a house that has been empty for at least six months.

SOURCE: https://www.idealista.pt/news/imobiliario/habitacao/2023/02/23/56838-casas-vazias-e-casas-devolutas-final-o-que-esta-em-causa