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or encumbrances over the property are usually discharged
simultaneously with payment of consideration by the
purchaser (the most common being the cancelling of
mortgages).
• For urban real estate built or requiring licensing after April
2004, as a rule verification of the existence of a technical
information sheet is required for the sale thereof.
• Sale shall be registered before the competent Land Registry,
as well as before the Tax Authorities.
• Warranties for defects of the property are incumbent upon
the seller; such defects should be reported until 1 year as of
their knowledge but, in any event, within the 5-year period
following the sale.
• Off-plan sales are usual in conjunction with turn-key
construction agreements, the seller undertaking to construct
the real estate as per the purchaser’s specifications and the
sale being executed upon completion thereof.
COMMERCIAL LEASES
• Pursuant to the New Urban Lease Regime (NRAU), the parties
may freely determine the rules applicable to the duration,
giving notice for termination and renewal of leases for
commercial purposes, the NRAU general regime only applying
in case the parties do not expressly regulate differently.
The wider flexibility awarded to the parties by NRAU is in
any event limited by some mandatory rules that should be
complied with.
Duration: initial term and renewal of the lease
• Albeit the parties may freely determine the duration of lease
agreements, initial duration may not exceed 30 years, nor
are perpetual leases permitted. In the absence of express
stipulation by the parties, duration shall be of 5 years. No
limitations exist regarding minimum duration.
• Except if stipulated otherwise, agreements shall be
automatically and successively renewed for periods of time
equal to the initial duration. No statutory limitations exist
regarding the combined duration of the initial term and its
renewals.
Rent and other charges
• The parties may freely establish rent values and evolution
thereof (including any rent exemption periods and/or value
adjustment causes or milestones), as well as intended rent
update regime (although commonly update is made as
per the official index determined by the National Statistics
Institute and published in the official journal).
• Should the parties not expressly regulate the rent update
regime, the same shall be subject to yearly updates as
per the official index, the first update being susceptible of
enforcement by the landlord 1 year as of commencement of
the lease agreement and the following successively 1 year as
of the previous adjustment.
• The Parties may also freely determine the rules regarding
allocation of certain costs and charges related with the leased
real estate. Absence of express regulation determines that
the tenant shall bear all costs related with the supply of goods
and services (including water, electricity, etc.), the landlord
being liable for any charges arising from the management,
maintenance and use of the common parts of a horizontal-
property building where the leased premises are located (if
applicable), as well as of services of common interest (such
as, for instance, cleaning or security of common parts).
Transfer of business and assignment
• As a general rule, the assignment of the tenant’s contractual
position in the lease agreement is subject to the landlord’s
prior consent, with the exception of the following cases where
such consent is not required:
–– transfer of commercial or industrial undertaking or
business as a going concern (trespasse), although, except
if otherwise agreed, the landlord is entitled to a pre-
emption right regarding such transfer;
–– temporary assignment of a business (locação de
estabelecimento), that should in any event be notified in
writing within 1 month as of such assignment;
–– assignment to entity that continues to perform in the
leased premises the same liberal profession/activity;
• Transfer or assignment of business or of the tenant’s
contractual position should be executed in writing and
notified to the landlord.
• Should, upon the transfer or assignment, the leased premises
be used for a different purpose or if the assignor does not
continue the performance of the same liberal profession/
activity, the landlord may terminate the lease agreement.
Termination
• The parties may freely determine the terms and conditions
under which the lease agreement may be terminated via
notice for termination at any time or objection to the renewal
of the ongoing term. If no express stipulation is made:
–– the tenant may object to the renewal of the agreement by
serving a notice 120, 90 or 60 days in advance of the end
of the ongoing term, and the landlord may object to the
renewal of the agreement by serving a notice 240, 120 or
60 days in advance of the end of the ongoing term, in case
such term’s duration is equal to or exceeds, respectively,
6 years, 1 year or 6 months. In case the term’s duration
is lower than 6 months, such notice should be served in
advance by a period of time equal to one third of such
duration;
–– upon the lapsing of one third of the initial duration of
the lease agreement, the tenant may terminate it at any
time by serving a notice 120 or 60 days in advance of the
intended termination date, in case the initial duration is,
respectively, equal to or exceeds 1 year or lower than
1 year;
–– for leases with a subsidiary 5-years duration (due to the
parties not expressly agreeing otherwise), the tenant may
terminate by serving a notice 1 year in advance.
• Lease agreements may also be terminated due to default or
breach by any party, the general principle being that any party
is entitled to terminate a lease agreement if the counterparty
commits a breach that, due to its materiality or consequences,
renders the maintenance of the agreement in force not
demandable.
• NRAU provides a non-exhaustive list of cases of default or
breach that constitute fair grounds for termination of a lease
agreement by the landlord. Without prejudice, the parties also
retain the possibility of stipulating other specific causes for
termination (provided that the same do not breach imperative
legal provisions).
Energetic and air quality certification
• As a rule, all buildings subject to a lease agreement require a
specific certification evaluating and quantifying their energetic
performance and indoor air quality. Some premises are
however not subject to this certification, including industrial
90 Investors Guide to Europe 2015