Agreements for the exploitation of real estate for commerce and services located at shopping centers – clarification over the applicable legal regime

For more information about this topic, please contact: Joao Pinheiro da Silva +351 219 245 010 jpsilva@ctsu.pt

Legal Alert no. 144

On February 1, 2021, it was published on the Portuguese Official Gazette the Law no. 4-A/2021, which clarifies the exceptional regime applicable to exploitation agreements of commercial and services properties located at shopping centers, through an interpretative rule of Law No. 2/2020, of March 31 (the Law that establishes the government budget for 2020), as amended by Law no. 27-A/2020, of July 24, (the Law that establishes the supplementary government budget for 2020).
The aforementioned legal diploma intends to clarify the provision foreseen in paragraph 5, of article 168-A, of Law no. 2/2020, of March 31, as amended by Law no. 27-A / 2020, of July 24, which establishes, by reference to the cases in which specific forms of agreements for the exploration of real estate for commerce and services located at shopping centers are applicable, that no minimum rents are due until December 31 2020, only the payment of the variable rent component, calculated on the sales made by the tenant, is due to the owners of the shopping centers, in addition to the payment of all contractually agreed expenses, namely those related to common expenses and charges.
The interpretative rule approved by Law no. 4-A / 2021, provides that the suspension of the tenants' obligation to pay minimum rents applies to rents past the period between March 13 and December 31, 2020.
As such, the abovementioned interpretative rule clarifies that there is retroactive application of this regime from March 13, 2020, and not just from July 25, 2020, which corresponds to the date of entry into force of the supplementary government budget, which introduced the Article 168-A.
Lastly, the interpretative rule also establishes that the expression “shopping centers”, provided for in paragraph 5 of article 168-A of Law no. 2/2020, of March 31, must be interpreted to cover all the enterprises within the meaning of the definition provided for in paragraph m), of article 2, of the legal regime for access and exercise of trade, services and catering activities (Decree-Law no.10/2015, of January 16, amended by Law No. 15/2018, of March 27).
As such, the term “shopping centers” includes in its definition outlets, retail parks, among others, as long as it is part of a planned and integrated enterprise, composed of one or more buildings, in which a diverse set of retail commerce and/or service provision establishments are integrated, whether or not owned or operated by the same entity, and cumulatively: (i) have a set of facilities and services designed to allow the same clientele access to different establishments; and (ii) is the object of a common management, responsible, namely, for the provision of collective services, for the institution of common practices and for the communication and animation policy of the enterprise.
Law No. 4-A/2021 entered into force on February 2, 2021, taking effect from July 25, 2020, the date of entry into force of Law No. 27-A/2020, of July 24, which approved the supplementary governmental budget.

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