In fact, more than the controversy that has arisen since the Prime Minister, António Costa, announced the Mais Habitação program, it is the constitutionality of the forced renting of empty houses to combat the country’s housing crisis that is being questioned. And it is far from reaching consensus among law enforcement officials. Except for one point: if we move forward, we will face years of legal battles.
If property owners were not long in coming to say that these measures are an attack on private property, the president of the National Association of Property Owners even stepped forward with the intention of “using all legal means” to to stop this process.
The Basic Housing Act provides that the state only “encourages the effective use of privately owned vacant housing”. In that sense, it seems that only in exceptional cases can sanctions be imposed, in the manners determined by law, on owners of vacant buildings”, argues Luís Fábrica, consultant at Abreu Advogados. However, it is not clear “that an applied sanction measure for ineffective use could target goods that are not means of production, such as housing”. In this sense, he argues, “compulsory leasing, as a sanction measure referred to in the Basic Law, raises doubts about its constitutionality”.
However, lawyer Marco Moreira reminds that everything “will depend on the legal construction that is worked out” by the legislative teams. For the professional of the private law lawyer “the implementation of this type of measure will not necessarily be unconstitutional, but we will always talk about a very difficult balance”. Rode? The right to private property is enshrined in the Constitution, but it is not an absolute right. “It is the Constitution itself that allows its limitation”, but limited to what is strictly necessary to safeguard other protected rights or interests.
The framework allows for different interpretations. According to Marco Moreira, the Civil Code “defines the content of the right to private property in the sense that the owner fully and exclusively enjoys the rights to use, enjoy and dispose of the things belonging to him, within the limits of the law and subject to the restrictions imposed by it”. But “cases of restrictions or restrictions” abound, such as urban regulations or environmental protection. “As owners, we are not allowed to do what we want with the land or property that belongs to us,” he explains. Article 62 of the Constitution, which guarantees everyone the right to private property in land, Two instruments are mentioned that can limit this right: requisition and expropriation for public purposes. But that can only be achieved by paying fair compensation. And the right to housing is also a constitutional right, and the state is responsible for promoting and ensuring it.
It is also necessary to take into account the real intentions of the government. In the program Mais Habitação, it is proposed to participate until March 10 to rent the vacant homes to the State, which will then sublet them. Measure seen by the Executive as “an incentive”. In the document, he states that “forced leasing, which already exists in law, presupposes the existence of a prior legal obligation to use the property. That is, the obligations of the owners are in themselves limitations of the right on property.”. In this reading, the government understands that it gives an incentive to use the property.
The housing plan stipulates that, if a house is vacant and there is a demand for a house with these characteristics, the owner can freely enter into a rental contract, namely with the IHRU. Only if the owner does not want to rent it out will a formal deadline, as already provided for forced labor, be given to use the property, the program said. After this period, the rent becomes compulsory due to non-compliance with the obligation to use the property and due to the social function of housing.
Two instruments are mentioned that can limit this right: requisition and expropriation for public use. But that can only be achieved by paying fair compensation.
For Marco Moreira, the publicly released documents highlight “what appears to be an incentive for landlords to voluntarily put their homes on the market”. “The State will propose voluntary renting to private persons, subletting with a maximum effort of 35% of the household. Such a measure will not raise the constitutional problems that a forced renting measure can raise,” he emphasizes.
For Jane Kirkby, a lawyer and partner at Antas da Cunha ECIJA, the measure is “controversial, of course, but not a legislative innovation.” In its creation, two laws have been approved by the Assembly of the Republic, the Law of the General Foundations of Public Land Policy, Territorial Organization and Urban Planning, which allows the forced rent and availability of buildings in the land exchange, and the Law of Bases of Housing, which, as a social function of housing, establishes the effective use for housing purposes of properties or fractions with housing vocation and stipulates that the state, autonomous regions and local authorities have a duty to promote the effective use of vacant public property housing and encourage the use of private homes, especially in areas of greater urban pressure.
The lawyer therefore considers it premature to stamp the measures without knowing the regulations. “The right to private property allows limitations such as requisition and expropriation”, but “it will always be important, in the face of a clear conflict between two constitutionally enshrined rights – that of private property and that of housing – after whether the restriction this measure introduces to the right to private property passes the sieve of proportionalityrationality and appropriateness”.
Sónia Santos Pereira is a journalist for Dinheiro Vivo
Source: DN
