According to the Basic Housing Law (Law n.º 83/2019), housing that is unjustified and continuously, during the period defined by law, without effective housing use, for reasons attributable to the owner, is considered vacant.
Second homes, homes for emigrants and homes for people displaced for professional or health reasons are not considered vacant.
In addition, carrying out works duly authorized or communicated, during the deadlines defined for them, or pending legal actions that prevent this use are also justified reasons for not using the housing effectively.
Decree-Law no. 67/2019, of May 21 – which increases the IMI tax on this type of building, says that an urban building or autonomous fraction that is unoccupied for one year is classified as vacant:
Given the lack of contracts in force with telecommunications and water, gas and electricity supply companies;
If there is no billing for consumption of water, gas, electricity and telecommunications;
Given the cumulative existence of low consumption of water and electricity, considering as such consumption whose relative billing does not exceed, in each year, consumption greater than 7 m3, for water, and 35 kWh, for electricity;
It is important to emphasize that the existence of consumption higher than expected, “does not rule out the possibility of the property being classified as vacant, namely through inspection”.
The urban building or autonomous fraction is not considered vacant:
Intended for housing for short periods on beaches, countryside, spas and any other vacation spots, for temporary lease or for own use;
During the period in which rehabilitation works are taking place, provided they are certified by the municipalities;
Whose completion of construction or issue of license for use occurred less than one year ago;
Acquired for resale by natural or legal persons, under the same conditions as in article 7 of the Municipal Tax Code on Real Estate Transfers, as well as acquired by entities and under the conditions referred to in article 8 of the same Code, provided that, in any case, have benefited or will benefit from exemption from municipal tax on onerous transfers of real estate and during the period of three years from the date of acquisition;
That it be the residence in the national territory of a Portuguese emigrant, as defined in article 3 of Decree-Law no. 323/95, considering his tax residence as such, in the absence of any other indication;
That it is the residence in the national territory of a Portuguese citizen who performs functions or commissions of a public nature abroad at the service of the Portuguese State, international organizations, or functions of recognized public interest, as well as their respective authorized companions;
Integrated in a tourist enterprise or registered as a local accommodation establishment;
Whose consumption provided for in paragraph c) of paragraph 2 of article 2 is not achieved due to objective impediment to the use of the property, namely due to a judicial dispute as to the respective possession, due to the verification of any of the grounds provided for in paragraph 2 of article 1072 of the Civil Code or for reasons of training, health, provision of permanent care as an informal caregiver or stay in social facilities, as long as duly proven.
Is coercive tenancy unconstitutional or not?
The coercive leasing is at the heart of the controversy, and doubts have even been raised about its constitutionality.
According to the Minister of Housing, Marina Gonçalves, the mandatory lease of vacant houses is constitutional and it is the duty of the owners to use the houses. He stressed that this is an “instrument for the moment when someone does not want to rent the property when there is a duty to use the property”, and recalled, however, that the owner can “simply explain that it is not used because he is waiting for use license”. The minister stressed that "there are valid arguments for the owner to say that he is going to put it up for sale or lease".
However, several jurists consider, on the other hand, that the State's administrative possession of private properties is a restriction on the right to property and clearly unconstitutional. For the constitutionalist Jorge Bacelar Gouveia, coercive leasing is a violation of the essential core of property, because it cuts off the possibility of disposing and managing the property, being an arbitrary and disproportionate measure.
Administrative ownership of houses in Europe
The administrative ownership of houses is a reality in several European countries, such as Denmark and the Netherlands. Measures of this nature exist and this type of practice is allowed in the following countries:
In Denmark, when a house is vacant for more than six months, the municipality where that house is located has the power to force the owners to put the property on the rental market;
In the Netherlands, landlords are obliged to report to the municipal authorities whenever a residential property becomes empty, and the rules and deadlines vary from city to city. In Amsterdam, the law does not allow a house to remain empty for more than two months;
In the UK, local authorities can take ownership of a house that has been vacant for at least six months.
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Source: Idealist
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