AUTHOR (name and surname)

Ana Neves

COUNTRY

Portugal

YEAR

2021

Name of the act/s*

Regulates the housing framework Law regarding the guarantee of alternative housing, the pre-emption rights and the supervision of housing conditions

Subject area

Housing law and urban planning law

Brief description of the contents of the act

The act in reference regulates the housing framework law (Act 83/2019, of September 3) in some of its major aspects. In general terms, it establishes the obligations of public entities regarding the guarantee of a housing alternative (in order to implement the right to housing). The main provisions are the following:

i)               It introduces a legal definition of "effective housing deprivation situation" (Article 3);

ii)             It establishes an “objective duty” for public entities to provide the necessary support to households in a situation of effective housing need, specifying the competent entities and the terms under which they should intervene, both in a situation of a permanent effective housing deprivation and of an emergency and temporary one (Article 4);

iii)           Within the scope of the procedure for classifying a property for housing purposes as vacant, when it is located in an area of urban pressure (a densely populated area where there is significant difficulty in accessing housing), the municipalities have to present a proposal for leasing the property to its owner, for further subletting. If the proposal is accepted the classification procedure ends (Article 5 (1)-(5));

iv)            In cases where a property is classified as vacant and whenever the level of conservation established in an inspection so indicates, the municipality can order to the owner the execution of the necessary works to correct bad safety or salubrious conditions, as well as habitability conditions, under the terms of the legal scheme of urbanization and building [Decree-law 555/99, 16 December - https://dre.pt/dre/detalhe/decreto-lei/555-1999-655682] (Article 5 (6));

v)              Without prejudice to the pre-emption rights granted to tenants in the case of rented properties, the State, the Autonomous Regions of Açores and Madeira, and the municipalities have pre-emption rights in the sale of residential properties in urban pressure zones or in territories of the National Housing Program (that must assess quantitative and qualitative housing needs, as well as provide information on the housing market, including any shortcomings or dysfunctions) - Articles 6 and 7);

vi)            The duties of the Institute of Housing and Urban Rehabilitation, I.P., as a supervisor of housing lease are reinforced (Article 8);

vii)           This public body can request to the municipalities to assess the leased and sub-leased houses conditions; and the latter should report on the measures taken to the resolution of problems detected in them (Article 9);

viii)         The real estate companies must include in the advertising of the houses for lease some mandatory elements (so that people can know the habitability conditions of the house); administrative fines for non-                     -compliance are laid down (Article 10).

Comment

1. Legal background and related acts

The right to housing is enshrined in the 1976 Portuguese democratic Constitution (Article 65). In 2019, more than 40 years after, it was enacted the first housing framework law, approved by Law no. 83/2019 of September 3. Reaffirming the constitutional right to decent and affordable housing for all, it charges the state as the primary responsible for the realisation of this right. It also stresses the responsibilities of municipalities with regard to housing, that must assess the local housing needs and participate more actively in the housing and land-use policies.

The housing framework law has imposed the enactment of further legislation. The act under comment regulates some of the major provisions of this housing framework law. As above-mentioned, in sum, it states the obligations of public entities regarding the guarantee of a housing alternatives and the terms under which they have the right of preference in the alienation of housing properties, as well as their powers to supervise the conditions of habitability within the scope of housing leases. Two relevant acts were enacted before, in 2020, to develop other provisions of the housing framework law: the Decree-law 81/2020 of October 2, that regulates the carrying out of the inventory of the State's real estate assets with housing suitability and creates a State property exchange for housing, within the scope of the Economic and Social Stabilisation Programme; and the Decree-law 82/2020 of October 2an, that adapts the instruments created under the New Generation of Housing Policies (Resolution of the Council of Ministers no. 50-          -A/2018, which approves the strategic direction, objectives and action instruments for a New Generation of Housing Policies; and “New generation of housing policies in Portugal”, 2017 -  https://www.interregeurope.eu/finerpol/news/news-article/2122/new-generation-of-housing-policies-in-portugal/) and the Organic Law of the Institute for Urban Housing and Rehabilitation, I.P., to the basic law on housing and to the measures foreseen for housing in the Economic and Social Stabilisation Programme.

2. The main objectives and challenges

As the Institute of Housing and Urban Rehabilitation, I.P., has highlighted in the National Housing Strategy, Challenes and Changes, 2015, “[t]he housing sector in Portugal presents a paradoxical situation. On the one hand the high number of empty homes, on the other the difficulties experienced by families in finding housing that is adequate to their means and needs” (p. 3).

In 2017, the United Nations Special Rapporteur on adequate housing elaborated a Report about Portugal, after a fact-finding visit to Portugal from 5 to 13 December 2016 (General Assembly, A/HRC/34/51/Add2). Among other recommendations, it was recommended the adopting of a “national housing framework law formulated in consultation with all stakeholders and based on international human rights principles” (n.º 86.a); and it was highlighted the need for “better coordination between levels of government, including adequate flow of resources” and that the “central, municipal and autonomous regional governments should develop a common vision for cities in Portugal with a view to ensuring they are places of inclusion rather than predominantly for the affluent or tourists, and to ensure the effective implementation of the rights to adequate housing and to non-discrimination for long-term residents as a priority” (n.º 87).

The main objectives of the act under comment are in line with those recommendations. Namely, on the one hand, it articulates different public entities to pro-actively help solving the situations of people in real housing shortage. There is a deepening in decentralization of power and of the multilevel relationship in public action on housing, which have been recognised as important issues for its effectiveness and way to integrate the fragmented and disjointed nature of legal and policy instruments. On the other hand, the new act prescribes certain actions to be taken by public entities to increase the number of available dwellings in order to combat housing shortages.

On the 1^st of October, the United Nations Special Rapporteur on adequate housing commented on the housing framework Law. It remarked that “Portugal's new housing law emphasises that the State has to guarantee housing as a human right and that public housing policies must follow the principles of universality and citizen participation”. But it also argued that it will be important that new “provisions are interpreted and applied in a manner that is consistent with international human rights standards in the area of forced evictions”. And she added: "Though these measures may not be broad enough to ensure Portugal's housing remains affordable to those in need, this is a step in the right direction.” (Portugal: UN expert welcomes new law protecting the right to housing - https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=25083&LangID=E).

Overall, there seems to be too much normative dispersion and institutional complexity to expect a real progress in the state of realisation of the right to housing in Portugal.

Secondary sources/ doctrinal works (if any)

­       Afonso, Ana (2017). A Proteção do Direito à Habitação na Carta Social Europeia e no Direito Português. In Conferência Internacional “A Crise e o Impacto dos Instrumentos Europeus de Proteção dos Direitos Sociais nas Ordens Jurídicas Internas”, Porto, Portugal, 15-16 abril, 2017, in Lex Social: Revista de Derechos Sociales. ISSN 2174-6419. Vol. 7 (2017), p. 323-344.

­       Fahra, Leilani (2017). Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context Mission to Portugal, 2017 (available at: https://www.housingrightswatch.org/news/report-special-rapporteur-adequate-housing-mission-portugal).

­       Morais, Luís, Silva, Rita, Mendes, Luís (2018). “Direito à habitação em Portugal: comentário crítico ao relatório apresentado às Nações Unidas 2017”, Revista Movimentos Sociais e Dinâmicas Espaciais, v. 7, n.º 1, p. 229-243. ISSN: 2238-8052.

­       Mendes, Luís (2020). Nova geração de políticas de habitação em Portugal. Finisterra, 55 (114), 77-104. https://doi.org/10.18055/Finis19635.

­       Teles, Filipe, Romeiro, Patrícia, Pires, Sara Moreno (2021). “Thirty years of urban policy in Portugal: challenges and multilevel governance”, in A Modern Guide to National Urban Policies in Europe: A Modern Guide to National Urban Policies in Europe, ISBN: 978 1 83910 904, Elgar Publishing, 1 pp. 176-194.

­       Tulumello S., Silva R. (2019). A Brief Assessment of the Portuguese Framework Law for Housing. FEANTSA Housing Rights Watch E-newsletter, December, www.housingrightswatch.org/content/brief-assessment-portuguese-framework-law-housing.

­       Housing Europa, The State of Housing in Europe, 2021, https://getwarmhomes.org/the-state-of-housing-in-europe-2021-housing-europes-flagship-publication/.

*Act citation /year and number

Decree-Law 89/2021, of November 3.

Enacted by

Government

Official link to the text of the act

https://dre.pt/dre/detalhe/decreto-lei/89-2021-173732851