Pre-emption right for tenants in the transfer of dwellings declared unconstitutional

The Constitutional Court, on the grounds of violation of Article 62 of the Constitution of the Portuguese Republic, declared the unconstitutionality with general binding force of the rule contained in Article 1091(8) of the Portuguese Civil Code.

This rule was established by Law no. 64/2018, of 29 October, which, among other amendments, added paragraphs 8 and 9 to Article 1091 of the Civil Code, introducing a special regime of pre-emption rights of the tenant in lease agreements for housing purposes, where the building is not divided in different autonomous units under the horizontal property (strata title) regime.

The Constitutional Court concluded, as grounds for the declared unconstitutionality, that this special regime of preference contained in paragraph 8 of article 1091 of the Civil Code, excessively sacrifices the right to freely transfer the building.

Moreover, the Court also found the regime does not meet the objective to provide housing stability as granting a quota in a building does not allow immediate access to full ownership of the leased unit nor does co-ownership guarantees stability in the dwelling.

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