Law no. 8/22: Amendment of the horizontal property regime
Law no. 8/2022, dated 10th of January, which revises the horizontal property regime, altering the Civil Code, Decree-Law no. 268/94, of October 25, and the Notaries' Code
On January 10th, Law 8/2022 was published in the Portuguese Official Gazette, that revises the horizontal property regime (the “Law”), thus amending the Civil Code, Decree-Law 268/94, of October 25, that establishes the regulatory rules for the horizontal property regime , and the Notary Code.
Within the scope of this amendment, this Law amended articles 1419, 1424, 1427, 1431, 1432, 1436 and 1437 and added article 1424-A, all of Civil Code; amended articles 1, 3, 4 and 6 and added article 1-A, all of Decree-Law no. 268/94; and amended article 54 of the Notary Code.
The following alterations are of note:
1. Suppression of the lack of agreement in the modification of the constitutive title regarding common parts:
The Law amends Article 1419, of the Civil Code, stating that it is now possible to judicially suppress the lack of agreement to amend the title deed regarding common parts, whenever the representative votes of the condominium owners who do not consent to it are less than 1/10 of the invested capital and the amendment does not modify the conditions of use, the relative value or the purpose for which their units are intended.
2. Maintenance and fruition expenses:
Unless otherwise provided, the expenses related to the conservation and fruition of the common parts of the building and the payment of services of common interest are the responsibility of the owners of the units at the time of the respective resolutions, and are paid by them in proportion to the value of their units.
Notwithstanding the foregoing, it is also provided that the expenses related to the payment of services of common interest may, by means of the condominium regulation, be approved, without opposition, by the majority of the owners representing the majority of the total value of the building, be responsibility of the owners in equal parts or in proportion to the respective enjoyment, provided that the criteria that determine their imputation are duly specified and justified.
Regarding the expenses of the common parts of the building that exclusively serve one of the joint owners, the Law provides that they are borne by those who use them.
3. Essential and urgent repairs:
The legal diploma clarifies what is meant by indispensable and urgent repairs, defining them as those necessary for the elimination, in a short term, of existing vices or pathologies in the common parts that may cause or aggravate damage to the building or property, or put at risk the safety of persons.
4. Condominium Assembly:
The Law also alters the form of notice to convene the condominium assembly that must now be made by email to the condominium owners who have expressed such will in a meeting held previously, and this manifestation of will must be recorded in the minutes with the indication of the respective email address. Note that the owner must send, by the same means, a receipt of receipt of the respective e-mail of convocation.
Additionally, if the conditions are met to guarantee the presence, on the same day, of joint owners representing a quarter of the total value of the building, the call can be made for thirty minutes later, at the same location. Decisions must be communicated to all absent joint owners, within 30 days, by registered letter with acknowledgment of receipt or by email.
5. Reinforcement of the functions of the condominium manager:
The following have been added to the list of duties of the condominium manager:
a) Verify the existence of the common reserve fund;
b) Demand from the unit-holders their share of the approved expenses;
c) Carry out the resolutions which are not objected within 15 working days or within the period which has been fixed, except in case of impossibility;
d) Inform the unit-holders whenever the condominium is summoned or notified in judicial proceedings, arbitration proceedings, injunction proceedings, administrative proceedings or administrative proceedings and inform them of any developments in these proceedings;
e) Issue, within a maximum period of 10 days, a statement of the condominium’s debt, whenever requested; and
f) Intervene in all urgent situations that require an intervention.
In addition, and provided that the condominium regulations or the owners' assembly do not provide otherwise, if the joint-owners' assembly is at issue with regard to extraordinary conservation works or works that constitute an innovation, to be carried out in the building or in the group of buildings, the administrator is obliged to present at least three budgets from different sources for the execution of the same.
If the administrator does not perform the functions legally assigned to him, he is civilly responsible for his omission, without prejudice to possible criminal liability, if applicable.
6. Mandatory declaration for the sale of a unit:
Article 1424-A was added to the Civil Code, pursuant to which the unit owners, for the purpose of entering into a contract for the alienation of their units, must request the administrator to issue a declaration stating the amount of all condominium charges in relation to the respective fraction, which declaration must be issued within a maximum period of 10 days and is a mandatory document of the deed or the private document authenticating the alienation.
Liability for existing debts is determined based on the time at which it should have been settled, and the amounts that constitute condominium charges, regardless of their nature, that fall due after the transfer of the unit, are the responsibility of the new owner.
7. Resolution of the condominium's assembly
The new wording of article 1 of Decree-Law nr. 268/94, dated 25 October 1994, determines that the effectiveness of the resolutions depends on the approval of the respective minutes, regardless of whether they are signed by all the owners.
The signature and subscription of the minutes can be made by qualified electronic signature or handwritten signature, affixed on the original document or on a digitalized document containing other signatures.
8. Common reserve fund:
In cases where, by resolution of the condominium assembly, the common reserve fund is used for a purpose other than defraying the building maintenance expenses, the condominium owners must ensure the payment, within a maximum period of 12 (twelve) months, of the extraordinary contribution necessary to replenish the amount used.
9. Meeting of condominium owners by means of distance communication:
Article 1-A was added to Decree-Law No. 268/94, of October 25, under which whenever the condominium management so determines or the majority of the condominium owners request it, the condominium meeting is held by means of remote communication, preferably by videoconference. If any of the apartment owners is not able to participate by means of remote communication and has communicated this impossibility to the administration of the condominium, it is up to the latter to ensure the necessary means.
This Law will come into effect 90 days after its publication.
To access the full version of Law 8/2022, of January 10, please click here.
For more information on this topic, please contact
Marta Gouveia Gomes