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Legal alert no. 74

Preemptive right of the lessees

On October 29th, 2018, Law no. 64/2018 (hereinafter "Law no. 64/2018") was published in the Portuguese Official Gazette, referring to the exercise of preemptive rights by the lessees.

In effect, Article 2 of Law no. 64/2018 introduced amendments to Article 1091 of the Portuguese Civil Code.

Firstly, the lessee has a preemptive right in the purchase and sale or enforcement of the leased premises more than two years ago, rather than more than three years ago, as it was the case before this amendment.

It is determined that the lessee has a period of thirty days to declare if he intends to exercise his preemptive right, counted from the date of receipt of the communication of the sale project or the enforcement action and the clauses of the respective contracts, which must be made by registered letter with acknowledgment of receipt.

In the case of sale or disposal in fulfillment of the lease jointly with other assets, the obliged to the preemptive right shall indicate, in the communication of the sale project or the enforcement action, the price attributed to the leased, as well as the other amounts attributed to the real estate to be sold together.

In this case, the obliged to the preemptive right may require that the sale or payment in fulfillment of the lease covers the other assets, and must demonstrate the existence of an appreciable damage, not constituting grounds for the existence of such an appreciable damage the mere contracting of non-reduction of the deal.

Law no. 64/2018, although with specific features, matches the legal requirements applicable to the preemption rights regarding a lease located in buildings that are set up under the horizontal property regime to the lease located in buildings that are not set up under that regime.

Thus, in properties that are not set up under the horizontal property regime, the lessee has a preemptive right in relation to the share of the building related to the share of the lease, given the proportional value of that share in relation to the total value of the transmission.

For this purpose, the obliged to the preference must include, in its communication of the proposed sale or payment, the proportional value of the above-mentioned share of the building and the total value of the transmission.

In this case, the acquisition of the property by the holder of the preemptive right is performed with the exclusive use affectation of the share of the building corresponding to the leased.

Law no. 64/2018 further determines that, in the case of buildings not set up under the referred horizontal property regime, the tenants of these buildings may exercise the preemptive rights together. In this way, the property will be fully acquired, in proportion to each tenant, under a joint ownership scheme.

Finally, Law no. 64/2018 enters into force on the day following its publication, that is, on October 30th, 2018.

To access the full text of Law no. 64/2018, please click here.

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