The Simplex of Administrative Procedures and Licensing for Companies was published on January 8th and, with some exceptions, comes into force from March 4th. The diploma adopts important innovations in urban planning, focusing on simplification and the reduction of context costs.
The diploma materializes one of the main axes of the “Mais Habitação” programme, providing more soils for affordable housing. In fact, “the simplification of these procedures contributes to the increase of the available land, also allowing the cost of creating housing to be lower and the times of implementation of real estate projects to be shorter”, according to the preamble of the diploma.
Simplification of Procedures for Purchasing Urban Licences
Simplex brings the suppression of the need to obtain urban permits, thus creating the prior communication, exemption and exemption from prior control.
New exemption situations are envisaged where there is no prior control, namely:
- Increase in the number of floors without increasing the facade (for example, creation of an interior floor in an industrial establishment, for better use of the space).
- Interior works that affect the stability structure, ensuring that the skilled technician declares that the stabilization structure is acceptable in relation to the situation in which the property was before the work was done.
- When sufficiently precise prior information has been obtained; and for the replacement of vans with others that, giving an identical exterior finish to the original, promote energy efficiency.
New cases arise in which urban planning permits or other acts of prior control are waived, and it is only necessary to issue a non-binding opinion by the competent municipality. Get to know them:
- Works promoted by companies of the enterprise sector of the State, municipal and inter-municipal enterprises relating to: the installation of equipment or infrastructure intended to install public services; in the port areas or the public domain railway or airport.
- For housing or for beneficiaries of social policies, including residences for displaced students.
- Industrial, business or logistics parks, and similar, namely responsible business zones (ZER), industrial and logistics zones; for the protection of cultural heritage, among other situations.
Tacit Deferral and Payment of Due Fees
With the simplification of the procedures for obtaining urban planning permits, a tacit deferral scheme for building permits is approved, allowing the project to be carried out if the decisions have not been adopted within the due time frame, and the construction permit is removed, which is replaced by the receipt of payment of due fees.
Several rules are also adopted to make the counting of deadlines more transparent:
- The counting of deadlines begins with the submission of the application by the individual and not at an intermediate point in the procedure.
- The deadlines are only suspended if the individual takes more than 10 days to respond to requests for information, additional documents or other requests from the Public Administration.
- You can only request for information, additional documents or other requests once during the procedure.
In this way, the legal deadlines are extended, because their counting begins now with the submission of the application and not at a later time.
Additionally, it is determined that, if there is no prior rejection or invitation to correct or complete the request/communication, they are correctly instructed, and the request cannot be rejected on the grounds of its incomplete instruction.
Simplex and Home Purchasing
One of the novelties of Simplex licensing is the purchase of a home without the submission of a license, which raises some concerns, because it can generate problems if applied inappropriately.
Prior to Simplex, the presentation of the license at the time of sale was required and mandatory, which is no longer the case. With this mechanism, the aim is to increase the supply of housing in the Portuguese market, with the streamlining of transactions, reduction of costs and dynamization of the real estate market. However, there are also risks to be considered, including the acquisition of unlicensed properties with illegal construction, as well as the difficulty in obtaining financing for housing.
The simplification of licensing in the area of urban planning, stipulated by Decree-Law No. 10/2024 of 8 January, makes the procedures related to the purchase and sale of housing easier. At the time of the conclusion of the contract for the purchase and sale of the property it is no longer mandatory to present or prove the existence of the technical file of housing and the authorization of use before the notary. In force from 1 January 2024, this measure eliminates the need for authorization of use after a work subject to a prior inspection.
It should be clarified that this measure does not authorize the sale of houses without a license, but rather the possibility of selling without proof or display of a licence, which represents two different realities.
In practice, there is a transfer of duties. Until the end of 2023 it was an obligation of the seller, now it becomes a concern of the buyer. The buyer must apply for the license to use the property he intends to purchase before signing the contract of promise of purchase and sale. The existence or non-existence of the licence can influence the acquisition of the property, as well as obtaining a loan for housing.
Allowing the purchase and sale of housing without the need to require a licence has several advantages. However, this approach ends up transferring responsibilities to buyers, who are less protected by legislation. Check out the advantages and disadvantages.
Advantages for the Portuguese Housing Market
- Placing more housing on the market that, until now, could not be sold legally due to lack of licensing, and can be bought by all those who, even knowing this reality, do not see in it an inconvenience for the purchase of the property.
- Increase in the number of homes sold in Portugal. With this measure, more real estate transactions can occur, mainly among the most knowledgeable of the market, such as investors and funds.
Disadvantages for the Portuguese Housing Market
- Families and investors are less protected. Simplification and bureaucracy transfer responsibility to third parties, mainly to buyers, leaving them more unprotected.
- Facilitating the sale of properties with licensing problems, which can facilitate sale of houses with inadequate licenses, illegal and unlicensed works, especially if buyers are not properly informed.
- Increased risk of litigation for the sale of unlicensed or illegally constructed properties.
Protection of Families in Home Purchasing
Experts are of the unanimous opinion that the presentation of the license of use is dispensed at the time of the purchase and sale of a house does not imply that buyers do not request these documents before signing any contra. Buyers must immediately ensure that the property has a license or residential technical file with the seller, before committing to the purchase of the house, since this license may be required when formalizing the housing credit or even in a future sale of the property.
Therefore, it is essential that families invest in prior legal audits, with various experts, in order to ensure that the property is properly licensed.
“Despite the fact that the aforementioned legal guarantee has been eliminated, the urban simplex determined in article 19 that, in carrying out legal transactions involving the transfer of ownership of urban buildings, the custodian, assistant or officer, the notary, the lawyer or the applicant must inform that the property may not have the urban titles necessary for the use or construction”, remind the experts of Abreu Advogados, considering this a way to “continue to warn the buyer / investor that it may be acquiring the property without the necessary urban titles for its construction or use”.
Article by Isabel Meireles by Leilosoc® from 25th January 2024
