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Time sharing (direito real de habitação periódica)
• Is the right to occupy the unit of a property during a specified
number of separate time periods, thus allowing multiple
holders of such right to use the property.
• Is subject to legislation aimed at regulating the basic
specificities of this real estate interest and protecting the
clients purchasing them.
Rights affecting ownership
Easement (servidão)
• Is a burden imposed upon a property, in exclusive benefit of
another contiguous property belonging to a different owner.
• Is exercised to the detriment of the property which it
encumbers (prédio serviente) for the benefit of the
contiguous property (prédio dominante).
• Is attached to and thus is transferred along with the right of
ownership upon a sale of the property.
• May be created under an agreement (legal form requirements
are the same as those applying to usufruct), as well as derive
from law for reasons of general good or public interest.
Mortgage (hipoteca)
• Is a security interest granting its holder a priority claim in
relation to the proceeds of the judicial sale of a property; this
type of security does not result in the transfer of title over the
property to the mortgagee.
• Shall always have an ancillary nature in relation to the
specified secured credit. Accordingly, should the credit be
extinguished, declared null and void or terminated due to any
other cause, the mortgage will automatically cease to exist.
• May be entered into unilaterally by the mortgagor or under
an agreement signed between it and the mortgagee. Must
be executed by way of notarial deed, document certified by a
notary/lawyer, or document signed before a registrar.
• Only deemed valid and in existence, even among the parties
concerned, when the registrar records it with the real estate
registry. The effective date of creation is reported to the date
upon which the request was submitted to the registrar.
Pre-emption right (direito de preferência)
• Is a right to acquire a property by way of replacing another
prospective purchaser, to the extent that the holder of such
right grants to the seller the same conditions agreed between
it and the prospective purchaser.
• It may be held by public bodies for purposes of public interest
(buildings located in protected areas) or by other persons in
virtue of their relation with the owner. It may also be agreed
between the parties – in order for such agreement to be
effective vis-à-vis third parties, it must be registered with the
Land Registry.
Lien (direito de retenção)
• Is the right of a creditor, who is in possession of a property
belonging to a debtor, to retain it for so long as the debtor’s
obligations connected to such property are not discharged to
the creditor. Moreover, it also gives the creditor the right to
have its credit satisfied with priority in relation to other credits
upon a judicial sale of the relevant property.
• Is generally originated when the creditor is obliged to return
the property to the debtor, and the credit held by it results of
expenses related to the property or of damages caused by the
debtor but there are additional cases set forth in law where
the lien may be originated.
• Is automatically created by operation of law.
Rentals’ income assignment
(consignação de rendimentos)
• Is a security right interest consisting of the assignment to the
beneficiary the income arising out of the property, and may
only be entered into by the person holding the right to dispose
of such income.
• The income may be assigned for a certain period of time
not exceeding 15 years or until the secured obligations are
discharged.
ACQUISITION PROCESS:
KEY STAGES
• In Portugal there are no restrictions for foreign investors to
perform real estate transactions in Portugal, nor is any prior
authorisation required.
Negotiations
• More complex or high-value transactions – in particular
between qualified investors – are usually preceded by the
submission of a non-binding offer or letter of intent, followed
by the execution of a non-disclosure agreement governing
access to relevant information concerning the real estate. An
exclusivity period may also be agreed upon by the parties.
Preliminary contracts
• Real estate transactions are commonly preceded by the
execution of a promissory sale and purchase agreement,
setting forth a reciprocal undertaking by all parties concerning
the sale and purchase of the relevant real estate. This type of
preliminary agreement is usual if execution of the transaction
is subject to the fulfilment of conditions precedent and/or
conditional to the purchaser obtaining required financing.
• Simultaneous to the execution of a promissory sale and
purchase agreement, a deposit is normally made as advance
payment of due consideration, the percentage thereof varying
as agreed by the parties. This deposit will be lost or shall
have to be returned in double if, respectively, the promissory
purchaser or seller fail to execute the definitive agreement; in
case the promissory purchaser was awarded with possession
of the property (traditio) the same may opt to request for
return of the deposit in single, but accrued of a compensation
in an amount equivalent to the market value of the property
at the date of breach, minus the agreed consideration.
Alternatively to the preceding, the non-breaching party may
apply for the compulsory enforcement of the promissory
agreement.
• While less frequent, either interested party may also
execute a unilateral promissory agreement, undertaking to
sell or purchase, as applicable, the relevant real estate, the
counterparty however making no correspondent undertaking.
Although permitted, the granting of options over real estate is
more uncommon.
Execution of the sale
• The sale of real estate is performed via (i) public deed
executed before a notary, (ii) sale and purchase agreement
with authenticated/certified signatures, or (iii) sale and
purchase agreement executed before the Land Registry as per
a relatively standard form.
• Execution of the sale is preceded by the verification of
ownership of the seller over the real estate and of its
capacity to dispose of the property. If existing, any charges
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Investors Guide to Europe 2015