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Amendments to the horizontal property regime

On January 10th, 2022, the Law 8/2022 was published in the Official Portuguese Journal, which revised the horizontal property regime.

Before identifying the changes introduced by this new law, it is important to refer that a building constituted in horizontal property is a building divided in independent units, registered individually, each one having an exit to a common part of the building or to the public road, which may belong to different owners.

Returning to the new law, it aims at the revision of three different legal acts:

  1. Civil Code;

  2. Decree-Law no. 268/94 of October 25th;

  3. Notaries' Code.

Among the alterations introduced to the Civil Code, we highlight the legislator's measure that allows the alteration of the constitutive title of the horizontal property without recourse to unanimity.

In fact, from the entry into force of this new law on April 10th, 2022, the lack of agreement of the respective owners can be overcome by judicial means, provided that the following conditions are met:

  1. the votes of the owners who do not consent to the amendment are less than 1/10 of the invested capital;

  2. the alteration does not modify the conditions of use, the relative value or the purpose for which its units are intended.

The establishment of this exception will allow the settlement of some of the usual disputes arising between owners, namely by amending the condominium regulations contained in the respective titles of constitution.

Moreover, this law clarified the attribution of liability for expenses generated by the maintenance and use of the common parts of the building and related to the payment of services of common interest, being these responsibilities attributed to the unit owners at the time of the respective resolutions, in proportion to the value of their units.

Expenses related to the payment of common interest services defined by the condominium regulations, approved, without opposition, by the majority of the unit owners, are excluded from this allocation, as long as the criteria that determine its allocation are duly specified and justified, as well as expenses related to the common parts of the building that exclusively serve any of the unit owners.

The seller of each unit is now obliged to request the condominium administrator to issue a written statement of debt in relation to the unit to be sold, which will be issued within 10 days from the request. This document will become mandatory for the execution of purchase and sale public deeds or authenticated private documents, except if expressly waived by the buyer.

New rules were approved in relation to Decree-Law 268/94, namely concerning the subscription, signature, content and mandatory information to be included in the minutes of the Condominium's resolutions, as well as limiting the effectiveness of these resolutions to the approval of the respective minutes.

In addition to the need to obtain a declaration of non-debt to the condominium, the seller of a unit, after signing the transfer agreement, is obliged to provide the condominium administrator with information about the new owner, under penalty of being liable for the costs of identifying the new owner, as well as for the costs incurred by the delay in payment of charges due after the sale.

In order to minimize the number of defaults in the payment of condominium fees, the law established a general deadline of 90 days from the date of the first default of each unit owner for the administrator to initiate legal action to collect the amounts due, unless otherwise decided or when the amount does not justify it.

It also established the possibility to hold the Condominium's Assemblies remotely, provided that it is possible to do so.

The alterations made to the notarial code are intended to be in line with the new obligation to present a declaration of debt mentioned above.

To conclude, these measures are, in our opinion, the result of a necessary adaptation to current times, as well as an attempt to prevent conflict situations generated by non-compliances and by the need to obtain unanimity for issues that did not justify such imposition.