Amendments to the Regime of Horizontal Property
The legal regime of horizontal property has been reviewed through Law 8/2022, of 10 January, amending the Civil Code, the Decree-Law 268/94, of 25 October and the Notary’s Code. The main alterations to the above-mentioned diplomas are listed below.
1. Civil Code:
a. Possibility to judicially suppress the lack of agreement regarding the alteration of the constitutive title in relation to common areas;
b. It is expressly established that the responsibility for the maintenance and fruition expenses belongs to the owners at the time of the respective resolutions.
c. It is foreseen that the expenses related to the common areas that serve, exclusively, one of the owners will be under the responsibility of those who use them.
d. Article 1424-A is added to the Civil Code and article 54 of the Notary’s Code is amended, regarding, respectively, the responsibility for the condominium’s expenses and the obligation to present, in the instruments of transfer of real estate, a declaration relating to those expenses.
e. The concept of “indispensable and urgent repairs” is clarified. The Civil Code already provided that such repairs could “be carried out, in the absence or impediment of the administrator, at the initiative of any owner”. Under the new law:
“Indispensable and urgent repairs are those necessary to eliminate, in a short period of time, existing defects or pathologies in the common parts that may, at any time, cause or aggravate damage to the building or group of buildings and to property, and or put at risk the safety of persons.”
f. Regarding the condominium assembly:
i. Provision is made for the possibility of holding, exceptionally, the meeting for discussion and approval of the accounts and budget in the first quarter of each year, if this possibility is included in the condominium’s regulations or results from a resolution, approved by a majority of the condominium’s general assembly;
ii. The notification to convene the assembly can be made by electronic mail (for the owners who express their permission at a previous meeting, and such permission shall be recorded in the minutes with the indication of the e-mail addresses), and the owner should send the receipt of the e-mail by the same means;
iii. It is expressly foreseen that, in case of non-attendance of the number of owners required to deliberate on the first notice to convene, “if the conditions are met to ensure the presence, on the same day, of the owners representing a quarter of the total value of the building, the notice to convene can be made to thirty minutes later, at the same place”.
g. The duties of the condominium administrator are strengthened to include the following:
i. To verify the existence of the common reserve fund;
ii. To demand from the owners their contributions to the approved expenses, including interest and penalties
iii. To carry out the resolutions of the assembly that are not challenged within 15 working days, or within the time limit set for this purpose;
iv. To inform the owners in writing whenever the condominium is notified of any legal, arbitration, injunctive, administrative or disciplinary proceedings – and inform them at least every six months about the development of the proceedings;
v. Issue the declaration of the owner’s outstanding debts within a maximum deadline of 10 days, if requested by the owner, namely for the purpose of transfer of the property;
vi. Provide at least three budgets when the resolution of the assembly is related to extraordinary or innovative maintenance works.
h. The civil liability of the administrator in relation to its obligations is expressly provided for, even in the case of omission.
i. Clarification that the condominium is always represented in court by its administrator, who must submit court claims and be receive court claims on its behalf.
2. Decree-Law no. 268/94, of 25 October (Horizontal Property Regime)
a. It is established that the effectiveness of the resolutions of the assembly depends on the approval of the minutes, regardless of the signature of the owners.
b. Provision is made for the possibility of a qualified electronic signature or handwritten signature on the original document or on a scanned document containing other signatures.
c. It is established that the owners’ assembly can be held by means of a remote communication system (preferably by videoconference), at the discretion of the building administrator or at the request of the majority of the owners. However, if an owner is not able to attend the meeting by means of a remote communication system and has informed the administration of the building of its inability to do so, it is up to the administration to provide the necessary means, otherwise the meeting cannot be held by a remote communication system.
d. In case of transfer of property, it is stipulated that the new owner’s identification data (full name and VAT number) must be communicated to the administration of the condominium by registered post within 15 days after the transfer of property, and the previous owner is responsible for the expenses incurred for the identification of the new owner and the costs incurred for the late payment of the expenses that become due after the transfer of property in case of failure to communicate the new owner.
e. There is an obligation to pay an extraordinary contribution to replace, within 12 months, the amount of the reserve fund that is used, by resolution of the assembly, for purposes other than maintenance expenses.
f. It is expressly provided that the enforcement title (the minutes of the owners’ meeting which determine the annual amount of contributions to be paid by each owner and the due date of the obligations) will cover not only the outstanding principal, but also the interest for late payment and the penalties (if approved by the meeting or provided in the building regulations).
g. It is clarified that the administrator must initiate the judicial actions for the collection of the amounts owed by the owners within a maximum period of 90 days from the first failure to pay, unless otherwise decided by the assembly of owners and provided that the amount owed is equal to or greater than the amount of the Social Support Index of the respective calendar year.
The Decree-law will come into force 90 days after its publication, that is, on 10 April 2022, with the exception of the amendment concerning the representation of the condominium in court by the respective administrator, whose amendment came into force on 11 January 2022.
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