On 16 June 2020, the Constitutional Court (TC) declared, with general binding force, the unconstitutionality of paragraph 8 of article 1091 of the Civil Code (CC). Thus, the legal regime of the right of preference in leasing for residential purposes, with regard to leased properties located in buildings that are not under a horizontal property regime, introduced by Law no. 64/2018, of 29 October, is eliminated from our legal system.

The changes introduced by the aforementioned Law were intended to protect the tenant's position and his [constitutional] right to housing. However, the TC understood, after an extensive analysis of the legal regime of the Right of Preference provided for in paragraph 8 of article 1091 of the Civil Code, that the rule, in addition to being unconstitutional, entailed a situation of fragility and disproportionality for both parties in the rental relationship.

It is provided for in paragraph 8 of the aforementioned article, which is still in the wording of the current Civil Code, that in the case of partial leases of buildings which, not being constituted in horizontal property, but which in turn are constituted by autonomous units of independent use, if the landlord intends to sell the urban building, the tenant has the commonly known right of option to purchase, not in relation to the building in its entirety, but only and exclusively in relation to the leased part.

This means that the right of preference has as its object a portion of the property of the building, with the tenant not acquiring full ownership upon purchase of the leased property, but merely co-ownership. This co-ownership is with third parties or with the landlord himself, should the latter frustrate his intention to sell the remaining building.

This is therefore a case of co-ownership that enjoys a special regime, in comparison with the regime provided for in articles 1403 to 1413 of our civil law, since in the first, to the detriment of the second, the non-tenant co-owners are not qualitatively and quantitatively equal, and therefore cannot use the property in its entirety.

The TC understood that this rule violates the constitutionally enshrined principle of the right to property, both with regard to legal positions already established and with regard to the future ownership of the tenant and his partners. On the one hand, the landlord sees his right to the free transfer of the building being sacrificed in a costly manner, since he is prevented from selling his building in its entirety and, if the tenant expresses his wish to do so, he must sell an ideal share of it, which will certainly lead to difficulties in selling the property, in finding buyers interested in acquiring shares and a devaluation of the property on the market; on the other hand, the preferential tenant and other joint owners, as the ruling itself states, are prevented from using the common property as far as the exclusive part is concerned, until the division of the common property is carried out, without there being any guarantees that the building meets the physical conditions to be divided or that in an action for division of the common property, the leased premises will be awarded to the preferential tenant.

But it is the landlord's right to private property that suffers the greatest and most disproportionate limitations, which constitutes the aforementioned unconstitutionality of number 8 of article 1091 of the Civil Code, under the terms of article 62/1 of the Constitution of the Portuguese Republic.

This article is written using the Old Orthographic Agreement.

Link: https://osae.pt/pt/artigo/revista-sollicitare/1/1/5/224
Link: https://issuu.com/camara_dos_solicitadores/docs/sollicitare_29_opt/74