Legal alert no. 69
Real Estate Mediation Contract
On August 13rd it was published, in the Portuguese Official Gazette, the Administrative Rule (“Portaria”) no. 228/2018 (hereinafter, “Administrative Rule no. 228/2018”), which approves the model of the real estate mediation contract.
In fact, Article 1 (b) of the Decree-Law no. 102/2017 of August 23rd (hereinafter, “Decree-Law no. 102/2017”) introduced amendments, in particular to the Article 16 of the Law no. 15/2013 of February 8th, which establishes the legal regime to which real estate agency activity is subject (hereinafter “Law no. 15/2013”).
Accordingly, due to the amendments made in 2017, the validation authority of the real estate mediation contracts, prepared using the general contractual clauses, was transferred to the Instituto dos Mercados Públicos, do Imobiliário e da Construção, I.P. (hereinafter, “IMPIC”).
In addition, it was determined that, if the model of a real estate mediation contract was used, to be approved by ordinance, the prior validation of the contract would be waived, being the same subject to deposit (see Article 15 (4) to (6) of the Law no. 15/2013).
Finally, it was determined that failure to comply with the obligation to deposit or of submission to prior validation would determine the nullity of the contract (see Article 16 (7) of the Law no. 15/2013).
Although the changes introduced came into force on July 1st 2017 its feasibility was dependent on the discipline now introduced by the Administrative Rule no. 228/2018).
The main innovations are the following:
As established in Article 2 (2) of the Administrative Rule no. 228/2018, the real estate agency that uses the model contract with general contractual clauses, attached to the Administrative Rule no. 228/2018, must make its deposit until five days before its use.
On the other hand, if another real estate mediation contract is used, it is subject to the prior approval of IMPIC and cannot be used until it has been validated (see Article 3 (1) and (6) of the Administrative Rule no. 228/2018).
We also point out that amendments to the contracts are also subject to the referred prior authorization, in accordance with the provisions of Article 3 (2) of the Administrative Rule no. 228/2018.
The real estate agency must present the contract template through IMPIC’s e-mail address, accompanied by the following elements: (i) complete identification of the real estate brokerage company, including the AMI license number with IMPIC; and (ii) the e-mail address of the agency (see Article 3 (3) of the Administrative Rule no. 228/2018).
Therefore, IMPIC has 20 working days from the date of its receipt to analyze and decide on the validation of contracts that have not adopted the model, approved in attachment to the Administrative Rule no. 228/2018. IMPIC must observe the general principles for the processing of personal data, in particular those set out in Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27th 2016 (see Articles 3 (4) of said Administrative Rule).
We note that the deadline can be suspended if IMPIC requests information from the requesting company or requests changes to the contract model, resuming its counting when these elements are present (see Article 3 (5) of the Administrative Rule 228/2018).
As a transitional provision, it is determined that contracts approved by the Consumer Affairs Authority (“Direção-Geral do Consumidor”), under the terms of Article 16 of Law no. 15/2013, are exempt from the prior approval procedure, provided that they do not have any amendments (see Article 5 of Administrative Rule no. 228/2018).
Finally, the Administrative Rule no. 228/2018 entered into force on the day following its publication, that is, on August 14th 2018.
To access the full text of the Administrative Rule no. 228/2018, please click here.