DEEDS: WHAT ARE THEY?
The deed is verbally requested to the notary who accepts the request if it is licit and the parties have the capacity for the desired act. It is then prepared and accurately and clearly written by the notary.
To Salvatore Satta, in Poesia e verdade da vida do notário, “the will, to be so, to be the ordinance’s will, needs the man to make it his and needs him to make himself (…) a judgement”. That man is the notary and the public act is that judgement.
When the deed is scheduled, the parties come to the notary’s office to hear its reading aloud. The deed:
- Begins by an introduction and mentions the date, the author and the notary;
- Then follows the identification of the concerned parties, the verification of their identity and the verification of their quality and power;
- Another part where the notary describes the act he/she is executing, its content, clauses, object and onus if any;
- A final part, for the description of the documents to be recorded and the ones which have been exhibited under the exercise of a public act:
- Check the accomplishment of the fiscal duties (IMT and IS payment);
- Oversight the presentation of fiscal declarations (see the case of the declaration when there was or not a real estate agency intervention, Form 11, which the notary usually sends to the finance department (AT) including to mention all the acts done the previous month);
- Prevent the money laundering (clearly mention in the deed how the payment was done) and
- Protect the consumer and judicial business security (verify if the building belongs to the person who is alienating it, the corresponding onus, check the data base, during the celebration, to find that the documents to extinguish the onus such as mortgages have been correctly issued, exhibit the use license and the allotment infrastructures conclusion evidence and certify the delivery to the buyer of the housing technical sheet and the energetic certificate).
After that final part, there is the deed conclusion where we say that it was read aloud to the parties and its contents explained.
At the end, the deed is signed by the parties and at last, by the notary.
Advantages of the public deed
Deeds are authentic documents which are an evidence of the facts foreseen by the notary and that evidence can only be considered invalid based on its falsity, but never when it is based on the witness’s declarations.
There are some cases the law demands a special form for a contract foreseeing the security of the judicial business and the corresponding will ponderation of the parties to hire, but any contract can be formalized by a public deed even if not requested by the law.
Besides its probationary strength the public deed is relevant as it:
- Guaranties that it respects the parties ‘will whom the contents have been explained to;
- Guaranties its legacy;
- Guaranties that the parties had legitimacy to practice the act;
- Guaranties the prevention of conflicts;
- Guaranties the document’s inalterability, preservation and easy access, whose original is compulsorily kept in the notary’s office.
Identification
Any person who wants to grant a deed must identify himself/ herself with one of the following valid documents: identity card, citizen card or driving license issued by one of the EU countries (or similar, military or diplomatic), passport, residence permit, Brazilian identification document mentioning the holder’s nationality and referring to the Friendship Agreement Portugal Brazil, Angolan, Cape Verdean, Guinean or São Tome identity card.
Whenever a person does not hold one of these documents, he/she can be identified by two witnesses who have one of the above mentioned valid documents.
If one person is not mentally fit, does not understand the Portuguese language, does not know or cannot sign, the not emancipated minors, the death, dumbs and blinds, those working in the notary’s office, the spouse, the great-great-parents, the great parents, the parents, the children, the grand-children, the grand-grand-children, the brothers, the sisters, the brothers and sisters in law of the notary issuing the act, of the applicants, their representatives or represented, both husband and wife and anyone who, due to the act has acquired a patrimonial advantage, cannot be a witness.
Kinds of deeds
The public deed form is done for contracts related to property, credit, inheritance, prenuptial conventions, associations, foundations and societies.
Among the contracts, we can make a public deed related to real estate, a promise agreement having real effect, purchase and sale, exchanging, dation in payment, donation, with or without usufruct right, constitution of the usufruct right, housing, servitude, surface, usufruct renounce, divorce share, common good division, constitution and change of horizontal property, all the estate and touristic sets and the real right to a periodic housing, the justification, rights recognition and friendly expropriation.
For inheritances, entitlement of heirs, share by death, assignment of a hereditary share and inheritance repudiation are made by public deed.
It is common to turn into public deed the promise contract having a merely compulsory effect, the lease, the exploitation cession and the transmission agreement.
It is also executed as a public deed the mutual (between privates or credit financial institutions), opening credit, mortgage, pledge, bail, mortgage credit cession and mortgage degree, revenue and income consignation, debt assumption, among others.
For legal people, a public deed is made for the constitution, the associations and foundations change and the societies’ constitution, change, liquidation and dissolution contracts, cessions, division, unification and the quotas and asset’s share.
Here you can find some useful information for citizens and enterprises about those contracts.
Promise contract
Definition
The promise contract is a convention made when someone obliges himself or herself to make a contract (the so-called promised contract or definite contract) and it guaranties the parties for an eventual breach of contract.
If the promised contract is the purchase and sale, there is no objection to execute another kind of contract, such as a permutation or an accomplishing dation.
Promise contract having compulsory effect
What is it?
The promise contract can have a merely compulsory effect (between the parties).
In this case, as the promise is merely compulsory, whenever the good is alienated to a third part, the proponent buyer must at first judicially cancel that sale and then, also judicially, to demand the celebration of the promised contract to the alienated proponent.
In case the cancellation is not possible, he/she will demand an indemnity to the alienated proponent.
Registration
The promise contract having a merely compulsory effect can be provisionally registered within 6 months, renewed for equal periods, against the declaration of the parties or within a year after the date established on the promise contract to the celebration of the definite contract.
A provisional registration can also be done against the declaration of the owner whose signature is attested and it is valid for 6 months; this registration is not renewable, it expires at the end of those 6 months and the proponent buyer loses the priority provided by that registration; nevertheless, a new provisional acquisition registration can be required, and it will establish a new date for the priority.
In any case, the provisional registration, still valid, becomes definite with the promised contract registration and this takes effect from the date of the provisional registration.
Promise contract having real effect
Real effect can be given to the promise contract by which the proponent buyer acquires a real acquisition right that allows him /her to enforce his / her acquisition right to execute the promised right in any circumstances, even if the good has been alienated to a third.
For a real effect to be given to a promise contract, it must be formalized by a public deed which states that real effect has been given and its registration has been made.
This registration does not expire, and it allows the proponent buyer to pursuit the good, regardless the number of transmissions and its current owner.
Onerous transmission of buildings or fractions
The promise for the onerous transmission of buildings or fractions (already built, being built or to be built), need a presential authentication of the signatures and the certification of the use and construction license made by the notary.
In case that is not possible, the notary notifies the parties about the invalidity of the promise contract and that they cannot formalize the definite sale without that document.
The invalidity due to the lack of the license can only be mentioned by the proponent seller if that omission has been caused by the other part (what will be, at least, very unusual).
To know more about the use license, see Documentation down.
Preference
The law foresees several legal preference rights in favor of privates or public entities in case the sale or the dation in payment of a property.
When a promise contract is made and there are preferential rights, you should subject its effects to the resolutive condition as one of the parties having those rights may apply for it in the time given by law (usually 8 days) or otherwise the proponent seller will incur in contractual responsibility.
To know more about preference, see Documentation down.
Documents
To know more about the documents you need, see Documentation down.
Fiscal duties
Tradition
The acquisition and alienation promises are subjected to the IMT (only, not to a Seal Tax), as soon as tradition is verified (transference of the good possession), except if it is for the housing acquisition for one’s own and permanent residence. In this case the exemption is verified if, cumulatively, it was not established that the proponent buyer can cede his / her contractual position, that he / she has not ceded his / her position to a third or if a so-called irrevocable power of attorney has not been done by the alienating.
The IMT is paid by the proponent buyer.
It is not relevant in this case that a real effect has or has not been given to the promise: it just reveals the fact that tradition has or has not occurred.
Cession of the contractual position
The promise which establishes that the proponent buyer can cede his /her contractual position to a third, as well as the respective transference of the contractual position, are subjected to IMT (only, not to a Seal Tax), to be settled before the celebration of the contract, supported by the successive proponent buyers and no exemption is applied. In this case, the taxation is done for the price paid for each contract and the tax for the total price established is applied and, whenever the proponent buyer or cessionary makes the definite contract, the tax already paid will be considered in the final liquidation.
Even when it has not been established in the promise contract that the proponent buyer can cede his contractual position to a third, and this happens and the owner alienates the good to a third, the transference is subjected to the IMT, and no exemption is applied, unless the part ceding (first proponent buyer) declares to the Tax Authority, within 30 days from the cession that he / she has received from the third the amount he had already paid giving suitable evidence or allowing the AT to have access to his / her bank data.
The cession of the contractual position which results in gain to the part ceding also implies a tax in benefits, in the condition of IRS or IRS.
Permutation
In case it is an exchange promise and just one of the parties takes possession of the property, IMT is paid as if it was a sale with no prejudice to the regulation when the definite contract is made.
Purchase and sale
Definition
The purchase and sale agreement is an onerous contract by which the ownership of one thing or a right is transmitted to someone else by a certain price.
The purchase and sale agreement is the paradigmatic contract of the so-called onerous contracts opposed to the free contracts, such as donation, and its rules are applied to other onerous contracts such as permutation.
Effects
The transmission of the property occurs, in general, immediately after the signature of the contract, independently from the delivery of the good, the payment or the registration.
However, the purchase and the sale have other effects besides the transmission of the property, such as the compulsory delivery of the sold good and its payment.
The purchase and sale can be executed with a reservation convention of the property until the complete payment has been done or under a suspensive condition which means the property is transmitted when the whole payment is done, or the condition verified, which is a future and uncertain event.
A future thing sale can be prepared as it does not exist at the moment (building fraction still unbuilt) or it does not belong to the person selling it yet, but the seller is expecting to get it, which means that transmission of the property only takes place when that thing exists, or the seller acquires it and it is no more future, but present).
Exceptional cases
The sale from parents and grandparents to children and grandchildren needs the other children and grandchildren and their spouses’ consent if married under the community of after acquired or common property regime or it can be nulled, judicially provided.
The sale of a spouse own property married under the community of after acquired property regime needs the other spouse’s consent or it can be nulled, judicially provided.
A spouse, while married, cannot sell the other’s property.
The housing right is not susceptible of being transmitted.
The usufruct right, whenever constituted, if alienated, expires by the death of the initial usufructuary and not the buyer’s.
Expenses/h5>
When not established, the contract expenses and any others, such as those related to registration are the buyer’s responsibility.
Preference
The law foresees several legal preference rights, considered different interests, in favor of privates or public entities in the case of a property sale.
To know more about Preference, see Documentation down.
Documents
To know more about the documents you need, see Documentation down.
Fiscal duties
The purchase and sale oblige the buyer to pay the IMT and the Seal Tax before the execution of the deed.
The liquidation evidences are registered together with the deed and the payment receipts.
The purchase and sale imply the seller a tax in benefits, in the condition of IRS or IRS
Permutation
Definition
The permutation or barter is the onerous contract by which someone gives someone else something in exchange of another thing.
To this contract we apply the purchase and sale rules, making the necessary changes.
Usually the amount of the things is not the same and the person who receives something having a higher value must deliver the thing having a smaller value and some money for the provisions to be equal.
Preference
Although permutation is an onerous contract such as the purchase and sale, it does not allow the exercise of the preference right since it presupposes an exchange that the proponent has no condition to offer.
Documents
To know more about the documents you need, see Documentation down.
Fiscal duties
The permutation advantage is fiscal: the person who acquires the highest value thing, pays the IMT and the Seal Tax, but just for the difference of the value between that thing and the other given in exchange to the other party, which means the amount of money for the provisions to be equal or the patrimonial tax value difference, in case it is higher.
For example:
A owns a property having a patrimonial tax value of 100.000 €.
B owns a property having a patrimonial tax value of 50.000 €.
A and B state in the permutation contract the same amount of 100.000 € and 50.000 € to their properties.
A gives a 100.000 € property and receives a 50.000 € property and the amount of 50.000 € in cash.
B receives a 100.000 € property and just pays IMT and Seal Tax over the 50.000 € (the amounts’ difference)
Even if the parties give to B’s property the value of 100.000 € the tax to be paid will be the same because the patrimonial tax value is higher.
For the permutation contracts of present properties (a land) and future properties (a fraction to be built) the transmission of the future properties occurs when they become present, which means when the use license is issued. The private must annex the declaration for the IMT and the Stamp Duty liquidation a copy of the architecture plan in case the project has already been approved.
AThe liquidation IMT and Stamp Duty evidences are registered together with the deed and the payment receipts.
The permutation implies a tax in benefits, in the condition of IRS or IRS.
Dation in payment
Definition
The dation in payment is a contract where the debtor agrees with the creditor to transmit him /her something different from the previous one settled to extinguish an obligation.
For example, if someone owes an amount in cash to a bank and cannot pay it, he / she can give in case the bank accepts, a property or a credit over a third to pay that debt.
The debtor can still give the creditor something for him / her to sell and the sale can cover his / her credit (dation for the one who pays). In this case, the obligation is extinguished if the credit is completely covered.
Between spouses
Although the law does not allow the purchase and sale between spouses, or the execution of onerous contracts, the dation in payment made by the debtor spouse to the creditor spouse is accepted, but just the debtor’s own goods.
Expenses
When not established, the contract expenses and any others, such as those related to registration are the buyer’s responsibility.
Preference
The law foresees several legal preference rights, considered different interests, in favor of privates or public entities in the case of a dation in payment of a property.
To know more about Preference, see Documentation down.
Documents
To know more about the documents you need, see Documentation down.
Fiscal duties
The calculation of the due taxes for the execution of a dation in payment contract is the same for the purchase and sale.
The dation in payment obliges the person acquiring (creditor) to pay the IMT and the Seal Tax before the execution of the deed.
The liquidation evidences are registered together with the deed and the payment receipts.
The dation in payment implies the alienating person (debtor) a tax in benefits, in the condition of IRS or IRS.
Donation
Definition
Donation is the contract by which a person, liberally and using his / her own patrimony freely disposes of one thing or a right or assumes an obligation on someone else’s profit.
Effects
The transmission of the property is done with the signature of the contract.
The donation implies the thing to be given.
Exceptional cases
Future goods
The donation of future goods is forbidden.
Personal act
As the donation is a personal act, the law does not allow the donor to give power to someone else to choose the donee or the thing to be given.
Unable
Legal representatives cannot make donations on their behalf.
Donation to minors or other unable person does not need to be accepted, unless it includes charges, and in that case, it must be accepted by the legal representative of the unable person.
Unborn or not yet conceived
Unborn people, already conceived or not yet conceived can be contemplated by a person established alive when the donation is made.
Between spouses
People married under the imperative regime of separation cannot make donations to each other.
This limit is not applied for people married under the conventional regime of separation, adopted in a prenuptial agreement.
Donations between married people under a matrimonial regime of community property, acquired property or separation are freely revoked and are extinguished if the donee dies before the donor, unless this one confirms the donation within 3 subsequent months to death, and in case of divorce or judicial separation of people and property.
Donations between spouses can be done for the donor’s own property and not the couple’s.
The donation between people judicially separated is not considered donation between spouses, but donation under the general regime.
Proposal
The donation, when it is not accepted, is considered a proposal, except for the donation to minores or unable, which does not need to be accepted, unless it includes charges, and in that case, it must be accepted by his/ her legal representative.
While the donation is not accepted, it can be revoked by the donor.
The donation proposal is extinguished if not accepted by the donee while the donor is alive.
Usufruct reservation
Donation can be done with or without usufruct reservation for the donor or a third and it can imply charges for the donee.
When it is a common property of the donors, the usufruct can only be for both, although we can establish it is extinguished by the death of the last one alive.
The value of the usufruct decreases as the age of the usufructuary increases.
Donation to “forced” heirs
Donation to a son or a daughter does not need the other children’s consent.
It can be done as an “inheritance advance”, which will be later considered during shares reducing the value of the donation to the heir’s right.
In this case, the property is subjected to an eventual reduction onus of donation subjected to collation.
On the other hand, donation can be done having in mind an additional benefit to the part the heir has the right (according to the available quota)
In this case, the donation can be reduced when shares are established if the value of the donor’s available quota is higher.
When the Portuguese law is applied, the available quota of a married person having no children is 1/2, a married person with children 1/3, an unmarried person with children 1/3 if there are several or 1/2 if there is only one, a married person having living parents 1/3 and a married person having living grandparents or great-grandparents 2/3.
The value of the available quota is accurately checked after death because it is implied by the total amount of the inheritance.
Documents
To know more about the documents you need, see Documentation down.
Fiscal duties
Donation is a free business subjected to the Duty Stamp (IS) payment by the acquirer (donee).
The property donation is subjected to the payment of the Verba 1.1 of the IS (8 for one thousand) and Verba 1.2. (10%). This one exempts the spouse, the non-matrimonial united, the descendants, the ascendants; the exemption does not exempt the declaration.
Donation is declared to AT after the execution of the deed but before the registration request, with the delivery of the declaration Modelo I IS.
However, in case the donee is a legal IRC person, if exempted, the donation is subjected to the payment of the Verba 1.1 of the IS and it is settled and paid before the deed.
Later, AT sends to the donee the settlement of the tax to be paid.
AT is informed about the donation with the donation deed and the declaration Modelo I IS filled and signed by the donee, including the donor’s identification, the donee’s and the gift’s (and the relation evidence, in case of exemption, and the copy of the donor’s and the donee’s identification documents).
The declaration is delivered in the finance department corresponding to the donor’s fiscal address or, in case he / she lives abroad, the finance department corresponding to the donee’s fiscal address.
The delay to deliver the Modelo I IS declaration is the end of the 3rd month after the execution of the donation (renewable for more 60 days in case of a justified difficulty); however, as the delay to registration is 2 months, the doner must deliver the declaration before the limit date if he / she does not want to pay an additional cost for the registration which can be the double.
Justification of rights
Definition
The justification of rights makes it easier to include ownerships in the registration, due to the supply of the lack of document proving the right.
A person can then, for example, possess in his / her name, public, pacific, continue and in good faith a property which he / she has verbally acquired for more than 20 years and it is impossible to execute its contract (purchase and sale, donation or other) according to the law and in that case he / she can appeal for a justification deed to register the property in his / her name.
The justification implies no litigation and no possibility to get the ownership through usual means.
The usucaption acquisition happens as time goes by, but the justification is needed for the holder to dispose the title to register his / her right.
Anyone having a legitimate interest, such as the creditors or the holder’s guarantor can justify it.
In this kind of deeds, all relevant facts must be described and the date of the beginning of the possession fixed, as that date corresponds to the deed’s effects.
Sometimes, the holder of the right has an acquisition title of a person who is not the current holder registered, because there is an intermediate title missing (because it was lost, destroyed or cannot be found).
For example:
The property is registered in favor of A, and C bought it to B, but he cannot find the purchase deed from B to A: it is necessary to establish the successive treatment.
Kinds of justifications
There are three kinds of justifications:
- The justification to establish a successive treatment, which means to register for the first time the property in someone’s favor (as the property is missing the registration);
- The justification to establish a new successive treatment, when who is appointed in the registration as the holder of the property subjected to registration (car or society’s share), for example, has abandoned it and another person who has hold it for the convenient time to acquire it for usucaption (in his / her name, public, pacific, continue and in good faith) and he / she is now the owner and in that case the person whose name is in the registration must be notified about the new holder’s claim.
- The justification for a resumption of the successive treatment when the holder of the property subjected to registration (car or society’s share) holds a title but the intermediate title is lost, destroyed or cannot be found ( for example, the property is registered in favor of A, and C bought it to B but he cannot find the purchase deed from B to A): in that case, the person in the registration as the holder of the right must be notified about the new holder’s claim.
Declarants
The justification deed is executed with the people making the justification and three declarants.
If one person is not mentally fit, does not understand the Portuguese language, does not know or cannot sign, the not emancipated minors, the death, dumbs and blinds, those working in the notary’s office, the spouse, the great-great-parents, the great parents, the parents, the children, the grand-children, the grand-grand-children, the brothers, the sisters, the brothers and sisters in law of the notary issuing the act, of the declarants, both husband and wife, relatives or spouse of the person justifying and anyone who, due to the act, has acquired a patrimonial advantage, cannot be a declarant.
Object
In the case of the real estate, the property right even when it is an undivided quota in co-property, the usufruct, the surface right, the apparent servitude and the real right of periodic residence can be bought by usucaption as well as the horizontal ownership regime.
Real estate that can be acquired by usucaption not necessarily integrated in the public area, are the ones registered in the property tax offices (holding the property registration, even if it is not in the name of the person claiming for the usucaption).
Movables subjected to registration (cars, social participations and boats) can be acquired by usucaption.
A justification can also be granted to get a title to cancel charges, such as mortgages.
Publicity
After its execution, the justification deed is always published on a newspaper in the council area the property or the society’s headquarters are located and for car registrations the register’s holder address or if not, the person justifying’s address.
In case there is no newspaper in the council area, the publication is made in one of the most read in the area.
The justification deed act can only be issued if the court does not inform the notary’s office that it has been contested within 30 days from the publication date.
Documents
To know more about the documents you need, see Documentation down.
Fiscal duties
Real estate justification is subjected to the payment of the Verba 1.2. Duty Stamp (IS) over 10% paid by the justifying person.
However, when you are justifying a land and the person justifying has lately built an improvement, tax will just be over the value of the land.
In case it is a justification which implies a donation between ascendants and descendants or married or no-matrimonial united, it is exempted from IS.
In the case for justifications having in mind the resumption of the successive treatment there is no tax payment since it has been paid when the contract was executed.
If the person justifying is a legal person in IRC, if exempted, the donation is not subjected to the IS payment.
The justification is declared to AT after the execution of the deed but before the registration request, with the delivery of the declaration Modelo I IS.
As mentioned above, the justification deed can only be issued if the court does not inform the notary’s office that it has been contested within 30 days from the publication date.
Later, AT sends to the justifying person the settlement of the tax to be paid.
AT is informed about the justification with the justification deed and the declaration Modelo I IS filled and signed by the justitying person, including his/her identification and the gift’s (and the relation evidence, in case of exemption, and the copy of the donor’s and the donee’s identification documents).
The declaration is delivered in the finance department corresponding to the justifying person’s fiscal address.
The delay to deliver the Modelo I IS declaration is the end of the 3rd month after the execution of the donation (renewable for more 60 days in case of a justified difficulty); however, as the delay to registration is 2 months, the justifying person must deliver the declaration before the limit date if he / she does not want to pay an additional cost for the registration which can be the double.
Mutual
Definition
A mutual is a contract by which one of the parties lends money to the other and this one is obliged to give back that amount.
The mutual can be free (having no interests) or onerous (with interests).
Interests
Interests cannot surpass legal interests in more than 3% when there is a real guarantee (mortgage) or in 5% in case that guarantee does not exist, being reduce to that limit tax in case they are higher.
Find more about civil and commercial interests.
Form
The mutual contract for an amount higher than €2.500 is subjected to a written form; however, if that amount is higher than €25.000 it is considered a public deed.
A mutual made by a bank institution is always written, no matter the amount and even when the other party is not commercial.
Minute and complementary document
If you want to formalize a mutual deed with a credit institution, you need to put your notary in contact with the bank to get the deed minute, the complementary document and to know who the representative during the act will be.
Fiscal duties
A mutual is subjected to the Duty Stamp payment, corresponding to 4 for one thousand when the delay is less than 1 year, 5 for one thousand when the delay is one year or more but less than 5 years and 6 for one thousand if the delay is 5 years or more.
Credit assignment
Noção
The credit assignment is a contract by which the creditor (the assignor) transmits, freely or onerously to a third (the assignee), a part or the total credit, regardless the debtors consent, since it is not forbidden by the law or by the contract and the credit is not, by its nature, connected to the creditor.
When nothing has been established, the assignment implies the guaranties transmission to the one acquiring the credit.
Form
The assignment credit guaranteed by mortgage is subjected to public deed form.
Debtor’s notification
The debtor does not need to consent the credit assignment, but it does not take effect before him / her unless he / she is notified.
Fiscal duties
The credit assignment can be subjected to the Duty Stamp payment described under Verba 17 in case the return of the right of the of the person acquiring before the creditor is established.
The credit assignment can also be subjected to the Duty Stamp Payment described under the same Verba when it produces financing (a higher price than the credit amount) and in this case the assignor is taxed due to his / her profit; however, if the price is less than the credit amount, no subjection is due.
Mortgage
Definition
Mortgage is a real guarantee, taking effect not only between the parties, but also over thirds.
It can be executed by the debtor or by a third and it gives the creditor the right to be paid for something with preference over the other creditors who do not have exceptional privileges or registration priority.
Mortgage can start with a contract or with a unilateral contract and not accepted by the creditor; it can also have a judicial or a legal start and it can guarantee future or conditional obligations.
Object
Things that can be considered mortgage objects are rustic and urban buildings, autonomous fractions, surface right, the right from concession of public space goods, the usufruct of things and rights mentioned and cars.
The quota of a thing or common right can also be mortgaged, but the half of the common property of the couple cannot be mortgaged nor can the undivided inheritance quota.
Accessory
The mortgage, as all guarantees in general, is accessory to the credit it guarantees and is extinguished with it.
Commissionaire alliance and inalienability
Except for exceptional cases, the convention by which the creditor will make his / her thing mortgaged in case the debt is not realized is null, as well as the convention forbidding the owner of the mortgaged property to alienate it or charge it again, although it is licit to agree that the mortgaged credit will be extinguished when one of those situations occur.
Fiscal duties
The mortgage if not constituted the same day of the debt is subjected to the Duty Stamp payment (IS) described under Verba 10, the tax corresponding to delay (4 for one thousand when the delay is less than 1 year, 5 for one thousand when the delay is one year or more but less than 5 years and 6 for one thousand if the delay is 5 years or more).
Mortgages executed to AT or to Social Security to guarantee the tax payment or contributions on capital gains are IS exempted.
Bail
Definition
The bail is a personal guarantee, executed by a third, the guarantor, to assure an obligation from the debtor to the creditor.
Being a personal guarantee, all the guarantor’s patrimony answers for the debt.
The guarantor’s can refuse to accomplish the obligation while the creditor still has some of the debtor’s goods or if he has not raised real guarantees, whenever they exist, such as mortgages, to get his / her credit. (previous execution benefit).
However, the guarantor can renounce to this benefit, usually for bank operations, having the creditor the right to choose the goods to be executed first.
The bail can be used without the debtor’s knowledge and against his /her will and obligations can be bailed, even future or conditional ones.
The bail may need to be accepted, so it will be better if the guarantor and the creditor take part in the contract.
Accessory
The bail, like the guarantees in general, is an accessory of the credit that guarantees and extinguishes with the extinction of this credit.
Fiscal duties
When the bail is not constituted on the same day of the debt, it is subjected to the to the Duty Stamp payment (IS) described under Verba 10, the tax corresponding to delay (4 for one thousand when the delay is less than 1 year, 5 for one thousand when the delay is one year or more but less than 5 years and 6 for one thousand if the delay is 5 years or more)./p>
Mortgages executed to AT or to Social Security to guarantee the tax payment or contributions on capital gains are IS exempted.
Horizontal property
Definition
When a building is made of independent, distinct and isolated units having a direct exit to the public way or to a common part of the building (stairs) and then to the public way, it is under the horizontal property regime, even when that building belongs to just one person, and, in that case, that regime will take effect when the first fraction is sold.
The horizontal property regime can be executed on a group of buildings functionally connected by common parts used by all or by some of the fractions (two autonomous houses with a common fence that separates them from the public way or having a common ludic equipment); the important is that all the fractions must have something in common to connect them functionally.
Common parts
Imperative common parts
The law obliges some parts of the building to be common, such as foundations, columns, pillars, master walls and all the parts related to the building structure, the roof, the cover terraces (even if they belong to a fraction) and, in general, water, gas, electricity, heating, air conditioned, communication and other facilities.
Non-imperative common parts
Annexed yards and gardens, elevators, the porter’s spaces, garages, parking and everything which is not one condominium’s will be considered common if the horizontal property constitutive title does not state the opposite.
Constitution
Fractions’ autonomy is established by the Câmara Municipal where the building is located or by the approved license project.
For the deed, the owners must be present.
Change
The horizontal property constitutive title can be altered when all condominiums agree and when they have the document issued by the Câmara Municipal where the building is located attesting the legacy of the changes to be made or the changes license project approved by that Câmara.
For the deed, all condominiums must be present or the administrator with the minutes signed by all of them.
When a condominium does not agree that is not a restraint, not even judicially.
Prenuptial agreement
Definition
A prenuptial agreement is a contract made between people who are engaged to establish the marital regime for their marriage (different from the one established by the law for the cases that a contract does not exist – additional regime).
Additional regime
The additional regime in the Portuguese law for the engaged who do not choose a different one making a prenuptial agreement is the community of acquired property since 01/06/1967 and before it was the community property.
The community of acquired property, states that each spouse owns the property he / she owned before the marriage and the one he / she might receive freely (heritance or donation) after the marriage, and the property onerously acquired after the marriage is common.
Imperative regime
There are some cases the law establishes an imperative regime of separation of property.
Since 01/04/1978 the imperative regime of separation of property is compulsory for people marrying after the age of 60 (before it was for men being over 60 and women over 50).
This imperative regime of separation of property is also applied when the marriage is celebrated with no preliminary process of marriage.
In this case, people intending to marry can, however, make donations to each other before the marriage.
Finally, those who have children from a previous marriage cannot choose the community property regime nor can they establish the communicability of the property (before 01/04/1978 it was applied the separation of property regime for these cases, but only when the children from the previous marriage were legitimate, even if major or emancipated).
The engaged autonomy
Besides these situations, those intending to marry can choose one of the marital regimes according to the law (common property or separation property), mix or add a condition or a term.
They can, for instance, choose the community of acquired property while they do not have children and, when they do, change to a community property regime or establish that something bought before the marriage becomes common (such as the community property regime) and for the rest the additional regime of community of acquired property it is applied.
Share by divorce or judicial separation of people and property
Common property of the couple
To protect the family and the spouses’ creditors, the law considers the common property of the couple an autonomous patrimony.
The common property only exists when the adopted regime is the community property or the community of acquired property.
Spouses just have the right over an ideal quota for the common property when shares are finished for both marital property regimes.
Common property share
That property can only be shared by the spouses after divorce or judicial separation of people and property, and if before, under the condition that it only takes effect after the divorce or the separation have been established.
So, for the property in that patrimony to be shared between the spouses and the conjugal community to end, it is necessary to execute a share and the spouse who receives higher value goods must compensate the other.
Compensation
If the couple has a common property, the ex-spouse who will keep that property must pay its corresponding half to the other ex-spouse.
However, compensation might not be due when the value of the property to be divided is the same of the debt to the bank and the ex-spouse keeps the property and completely assumes that debt.
Compensations during shares between ex-spouses have been established since 2008 and state that even when the matrimonial property regime chosen is the community property, none of the spouses gets more than he /she would if they had chosen the community of acquired property regime.
So, if there was a marriage following the community of property regime and a divorce in 2009, and the property to be shared had been inherited by one of the ex-spouses and it is adjudicated to the other ex-spouse, he / she must compensate him / her for the total amount of that property as if it was the ex-spouse’s ownership of the one who had inherited it.
Loan
It is common, when we talk about a loan, that one of the spouses, usually that one who the property is adjudicated to, assumes alone the debt.
This assumption of the debt takes effect between the ex-spouses after shares, but for the bank or any other creditor only when there is a consent, made by the bank or that creditor, to this assumption of the debt to one of the ex-spouses alone and an exoneration of the other for that debt.
Taxes
Shares by divorce oblige the spouse getting higher value property to pay Duty Stamp (IS) to be liquidated and paid after the execution of the deed, before the registration request.
IS is liquidated by the finance department where the highest value property is located.
The delay to pay the tax is 30 days from the deed’s date.
The spouse getting compensation is subjected to payment of some benefits.
Division of a common thing between co-owners married under the separation regime and non-matrimonially united
Co-ownership
Co-ownership means that two or more people hold the property rights over one thing.
If two single, widow, divorced or married people under the separation of property regime buy a property, they are co-owners and each one of them holds a definite quota, usually a half.
Division of a common thing
For one of them to become the only owner of the thing, a division of common thing deed must be executed and the person who becomes the only owner must pay a compensation to the other for his / her share.
Loan
It is common, when we talk about a loan, that the owner one who will hold the property alone after its division, assumes alone the debt.
This assumption of the debt takes effect between the co-owners after the division, but for the bank or any other creditor only when there is a consent, made by the bank or that creditor.
Fiscal duties
In the common thing division, the co-owner who takes over goods is subject to payment of the Stamp Tax, to be settled and paid after the execution of the deed, but before registration is required.
The co-owner getting compensation is subjected to payment of some benefits.
Entitlement of heirs
Definition
The entitlement of heirs is a deed made to establish the heirs of someone deceased, before the head of the household or three witnesses.
When the notary is executing the entitlement of heirs, he attests:
- The death of the deceased person by the death act;
- The relation between that person and the ones to be entitled as heirs by their marriage and birth acts and
- That there is or not a testament or a waiver of succession.
The head of the household or the declarants attest that there are no other people besides them to be considered as heirs nor are there others to be preferred in the succession (for example that there are no more children or that the deceased has left no descendants or living parents and so his / her heirs are the siblings).
Declarants
If one person is not mentally fit, does not understand the Portuguese language, does not know or cannot sign, the not emancipated minors, the death, dumbs and blinds, those working in the notary’s office, the spouse, the great-great-parents, the great parents, the parents, the children, the grand-children, the grand-grand-children, the brothers, the sisters, the brothers and sisters in law of the notary issuing the act, of the declarants, both husband and wife, the successive relatives of the heirs or their spouses and anyone who, due to the act has acquired a patrimonial advantage, cannot be a declarant.
Law applied to succession
For people living in the EU the law applied for their succession is the usual residence’s unless they make a testament expressing their will to apply for their nationalities’ succession law.
Find more about successions in Europe
See information about testaments
“Forced” heirs
In Portugal, since 01/04/1978, the living spouse is the legitimate heir and the 1st class of successive together with the descendants or, if not, the ascendants.
Before that date, the 1st class of successive were just the descendants, the 2nd class, the ascendants, the 3rd class the siblings and their descendants and the 4th class, the living spouse, who succeeded when the others missed; however, if the matrimonial regime was the community of property, he would have the right for the half.
Fiscal duties
The acquisition of property in a successor way is a free acquisition subjected to the payment of the Duty Stamp (IS), Verba 1.2. (10%) paid by the person acquiring the property. The spouse, the non-matrimonial united, descendants and ascendants are exempted; the exemption does not discharge the declaration.
The death declaration and its acquisition by successive way is declared to AT before the request of the acquisition in common registration and no determination of part or right (which is not compulsory).
Later, AT sends the heir the liquidation of the tax to be paid.
The declaration is made with the delivery of the declaration Modelo I of the IS.
However, in case the heir is a legal person in IRC, if exempted, the acquisition is not subjected to the payment of the IS.
The succession opening is sent to AT through the exhibition of the death act and the declaration Modelo I of the IS fulfilled and signed by the head of the household identifying the inheritance author, his heirs, his legatees and the inheritance assets ( the relation evidence, in case of exemption, and a copy of the identification documents of the inheritance author, his heirs and, if any, his legatees).
In case there are bank accounts we should first execute the entitlement of heirs for the bank to issue a declaration with the balances on the date of the death; accounts can only be moved after the delivery of the declaration Modelo I of the IS to AT and to the bank.
The declaration is made in the finance department corresponding to the deceased fiscal address or, in case he lived abroad the fiscal address of the head of the household.
The delay for the declaration Modelo I of the IS to be delivered is the end of the 3rd month after the death (renewable for more 60 days in case of a justified difficulty).
Share by death
Inheritance
The law, to protect the family and the deceased creditors considers the inheritance as an autonomous patrimony of the heirs.
Until the share, the heirs just have the right to an ideal quota of the inheritance.
Law applicable to succession
For people living in the EU the law applied for succession is the usual residence’s unless they make a testament expressing their will to apply for their nationalities’ succession law.
For the Portuguese living outside the EU the law applied for succession is their nationalities’.
So, for the inheritance assets to be divided by the heirs and for the hereditary community to end, a share must be formalized and the heir getting the highest value property pays the others a compensation.
Find more about successions in Europe
See information about testaments
Share and compensation
Heirs together can, without sharing, sell to a third, a property of the inheritance.
So, for the inheritance assets to be divided by the heirs and for the hereditary community to end, a share must be formalized and the heir getting the highest value property pays the others a compensation.
Fiscal duties
In the share by death the heir getting the highest value assets in comparison to his fair share, is subjected to the IMT and the Duty Stamp payment to be settled and paid after the execution of the deed, before the request of the registration.
The finance department for the liquidation is the one belonging to the address of the author of the succession.
The delay to pay the taxes is 30 days from the execution of the deed.
The heir getting the compensation is subjected to the payment of some benefits.
To know more see Taxes, under this page Services.
Cession of hereditary fair share
Definition
When the succession is opened, an heir can, when the succession is opened, alienate to another heir or to a third his / her hereditary fair share in an inheritance.
However, he cannot sell his / her ideal quota just for one of the assets in the inheritance, that is, the heir alone can just alienate his / her part (ideal quota) in the inheritance.
To know more see Preference, see Documentation below.
Heirs can alienate an asset of the inheritance to a third, if they do it all together.
If one of the heirs wants to take just for him or herself a whole asset of the inheritance, he / she must execute a share by death with the other heirs.
See information about testaments
Preference
The co-heir has a preference right in case of onerous cession (sell) of hereditary fair share.
Fiscal duties
Onerous cession
The onerous cession of a hereditary fair share is subjected to the IMT and Duty Stamp (IS) payment to be done by the acquiring person before the execution of the deed. .
The finance department for the liquidation is the one belonging to the address of the author of the succession.
This contract obliges the alienating to pay tax benefits.
In this case, its registration is not compulsory.
Free cession
The free cession of a hereditary fair share is subjected to the payment of the IS, Verba 1.2. (10%) paid by the person acquiring the property. The spouse, the non-matrimonial united, the descendants and the ascendants are exempted; the exemption does not discharge the declaration.
However, in case the acquiring person is a legal one, the free cession is not subjected to the payment of the IS.
The declaration is made after the execution of the deed but before the request of the acquisition in common registration and no determination of part or right (which is not compulsory).
Later, AT sends the heir the liquidation of the tax to be paid.
The declaration is made with the delivery of the declaration Modelo I of the IS.
The free cession of a hereditary fair share is sent to AT through the exhibition of the deceased death act, the free cession of a hereditary fair share deed and the declaration Modelo I of the IS fulfilled and signed by the acquiring person identifying the donor, the acquiring person and the assets belonging to the inheritance ( the relation evidence, in case of exemption, and a copy of the identification documents of the assignor, the donor, the assignee and the donee).
The declaration is made in the finance department corresponding to the inheritance author fiscal address or, in case he lived abroad the fiscal address of the donee.
The delay for the declaration Modelo I of the IS to be delivered is the end of the 3rd month after the death (renewable for more 60 days in case of a justified difficulty).
Waiver of succession
Definition
The waiver of succession is the way a person who would be considered a heir if he / she had accepted the inheritance, by deed, individually, personally, only unconditionally, irrevocably, undividedly and retroactively rejects being considered as one.
The waiver of succession presupposes that it has not been expressed or tacitly accepted yet, and that the succession has already been opened by someone’s death and, in that case, it is necessary to present the death act of the inheritance author to formalize the rejection.
Irrevocability
Both accept and reject the inheritance are irrevocable acts.
Representation right
When the person rejecting has descendants, they become the heirs, but they can also reject the inheritance.
Minors
Parents cannot reject the inheritance on behalf of their minor children without a judicial authorization or that act can be considered nulled.
Communication to the Central Registration Office
Notaries communicate to the Central Registration Office the execution of a waiver of succession or legacy.
Fiscal duties
The waiver of succession is subjected to the payment of the Duty Stamp tax IS, Verba 1.2. (10%) paid by the person acquiring the rejected right. The spouse, the non-matrimonial united, the descendants and the ascendants are exempted; the exemption does not discharge the declaration.
However, in case the acquiring person is a legal one, the free cession is not subjected to the payment of the IS.
The declaration is made by the delivery of the declaration Modelo I of the IS in the finance department corresponding to the inheritance author fiscal address or, in case he lived abroad the fiscal address of the acquiring person.
The delay for the declaration Modelo I of the IS to be delivered is the end of the 3rd month after the waiver (renewable for more 60 days in case of a justified difficulty).
Associations
Definition
Associations are legal people mainly settled on a personal substrate, having no purpose to act like an organization.
Constitution
The first step to constitute an association is to make its name approved, on the request of one of the future associated, giving three alternative names in order of preference, and the request can be applied by the notary.
Try here the confusion score of the denomination you have chosen
In case the similarity score is less than 85% the denomination might be approved.
Associations start with a deed act to nominate those who are going to be its directors, officials and members of the general assembly.
An association can be created with only two people, although more people are needed for the social bodies to act.
The associations’ statutes are published and accessed onPublicação on-line de ato societário e de outras entidades
The associations’ constitution is still subjected to the inscription in the Ficheiro Central de Pessoas Coletivas.
Associations can be considered of public interest and that request can be applied for thePortal da Presidência do Conselho de Ministros (Secretaria-Geral)
You can check the Lista de associações declaradas como de utilidade pública n the same portal.
Check here the list Canonic Judicial People existent.
Change
Associations can change their statutes, either the name or object, headquarters, other clauses or the way its administrative body obliges before thirds.
For some of these changes sometimes we need an admissibility certificate and the inscription on the Ficheiro Central de Pessoas Coletivas.
As for the constitutions, changes on the association’s statutes are published and can be checked onPublicação on-line de ato societário e de outras entidades
Dissolution
Associations can be dismissed for several reasons, being the general assembly deliberation the most common.
The destination of the dismissed association property is established by its statutes or the associates’ deliberation.
The association’s dissolution is published and can be checked onPublicação on-line de ato societário e de outras entidades and it is subjected to the inscription on the Ficheiro Central de Pessoas Coletivas.
Effective beneficiary
To constitute titles of legal people, it is compulsory to identify the effective beneficiary by a declaration signed by the associates.
The declaration identifies the associates and the directors’ full name, NIF or identification document and rank.
If one of the associates is a legal person, his legal representatives’ full name, NIF or identification document and rank are indicated.
Foundations
Definition
Foundations are legal people mainly settled on a personal substrate, having a social interest purpose and they can be established by an act between living people or by testament and they are subjected to attestation after their constitution.
Constitution, change and extinction
Foundations are subjected to the inscription on the Ficheiro Central de Pessoas Coletivas and their constitution and some of their changes need an admissibility certificate.
Try here the confusion score of the denomination you have chosen
In case the similarity score is less than 85% the denomination might be approved.
Its statutes can be changed by the responsible authority to attest it or by an administration proposal if that change does not touch the main purpose of the institution or his / her founder’s will.
Foundations are extinguished under some conditions foreseen by the law.
The foundations’ statutes, their changes and dissolution are published and can be checked onPublicação on-line de ato societário e de outras entidades
The foundations’ constitution, some of the changes and the dissolution are subjected to the inscription and can be checked on the Ficheiro Central de Pessoas Coletivas.
Check here theList of Foundations which have an inscription on the Ficheiro Central de Pessoas Coletivas.
Check here theList of Foundations
Foundations can be considered of public interest and that request can be applied for thePortal da Presidência do Conselho de Ministros (Secretaria-Geral)
You can check theList of foundations considered of public interest on the same portal.
Effective beneficiary
To constitute titles of legal people, it is compulsory to identify the effective beneficiary by a declaration signed by the founders.
The declaration identifies the founders and the and the legal representatives’ full name, NIF or identification document and rank.
If one of the associates is a legal person, his legal representatives’ full name, NIF or identification document and rank are indicated.
Societies
The notary writes the acts and requests their registration on-line. Those interested can take the minutes book to the notary’s office to make an authenticated copy or they can send by mail or telecopy to the notary’s office a copy of the minutes to be certified.
The notary takes part in the social bodies’ meetings and writes their minutes based on the declaration of the person who holds the assembly.
This is a wide subject and it is impossible to specify everything, so we just leave some remarks.
Form of the society’s acts
Most acts related to societies can be titled by a minutes or by a written document and registered on-line.
The society contract is obliged to the presential authentication of signatures.
However, if a constitution or change contract of society implies the entry of real estate it is subjected to the public deed form.
Society contract
Definition
The society contract is made between two or more people who oblige themselves to contribute with goods or services to the common exercise of a certain economic activity, that is not a mere fruition, having the purpose to share the profits of that activity.
Spouses can constitute societies between them or take part in societies. Most societies in Portugal are private limited companies (Lda. / Ltd.) having more than one partner or just one (Unipessoal, Lda / Sole Proprietorship Ltd.), or incorporated companies (SA).
Form
The constitution form of the society must at least be written, and its subscribers’ signatures must be presentially attested.
However, if the partners’ entry to the society capital imply the entry of real estate it is subjected to the public deed form.
In this case, the act is subjected to the IMT and Duty Stamp (IS) payment.
Clauses on the contract
On the society’s contract it is included the kind of society, the firm’s name, its purpose, the headquarters, the capital, the capital’s quota and the nature of each partner’s entry (money or goods and its description) and the establishment of the exercise period whenever different from the civil year.
The firm is previously approved by the Registo Nacional de pessoas coletivas.
Try here the confusion score of the denomination you have chosen
In case the similarity score is less than 85% the denomination might be approved.
Societies can be constituted on-line by choosing a pre-approved name or a firm with the partners’ names combined and all the process will be concluded in 24 hours.
Effective beneficiary
To constitute titles of legal people, it is compulsory to identify the effective beneficiary by a declaration signed by the partners.
The declaration identifies the partners and the managers or administrator’ full name, NIF or identification document and rank (partner, associate, manager, administrator).
If one of the associates is a legal person, his legal representatives’ full name, NIF or identification document and rank are indicated.
Limited Liability Companies
Partners
A limited liability company can be constituted by two partners.
Sole proprietorship
The limited liability company can be a sole proprietorship, having just one associate and then the firm is called Unipessoal, Lda.
A natural person can be just one sole proprietorship associate, but a limited liability company cannot have as its only associate a sole proprietorship.
Firm
The firm of a Limited Liability Company can include the name or the signature of one or more partners, their initials, a denomination or all those elements gathered and followed by the word Limitada or the abbreviation Lda.
Capital
The limited liability companies’ minimum capital is the sum of the partners quotas each one having a minimum nominal value of €1,00.
The capital can be realized in money or in kind (goods) previously evaluated by a ROC (Official accounting reviser).
The entries in kind must be realized before or when the contract is done.
When the entries in kind are real estate, the constitution of the society is subjected to the IMT and the Duty Stamp (IS) payment.
To know more see Taxes, under this page Services.
The €1,00 amount for each partner must be realized in money before the execution of the contract or until the end of the 1st economic exercise (or, in the case of the on-line constitution within 5 days after the access code to the permanent act is available).
The remaining, if in money, can be differed until a maximum delay of 5 years.
Partners declare in the contract that the realized money has already entered the society’s safety boxes or that it will be realized until the 1st economic exercise and, in this case, in the 1st general annual assembly, partners declare that they have delivered their amount entry (or, that it will be realized within 5 days after the access code to the permanent act is available).
Quotas
The amount of each quota cannot be less than €1,00, but the social capital amount is freely fixed.
When the limited liability society is constituted, each partner can hold just one quota.
Change the social pact
Changing the social pact must be approved by a majority of at least three quarters of the votes corresponding to the social capital or more if required by the social pact.
Capital increase
The capital increase, which is a change to the social pact, can be realized in money or in kind (goods) previously evaluated by a ROC.
The entries in kind must be realized before or when the contract is done.
When the entries in kind are real estate, the constitution of the society is subjected to the IMT and the Duty Stamp (IS) payment.
The increase realization can be differed to a maximum delay of 5 years.
Partners declare in the contract that the realized money has already entered the society’s safety boxes or that it will be realized until the 1st economic exercise and, in this case, in the 1st general annual assembly, partners declare that they have delivered their amount entry.
The capital increase identifies the amount of the new entries and its result amount for the quotas.
The increase can be done by increasing the quotas’ amount or by issuing new quotas.
The quotas’ acquisition in the societies by quotas from the capital increase is subjected to the IMT payment (not to the IS), when, due to that acquisition, one of the partners disposes of at least 75% of the social capital or the partners’ number is reduced to two married or non-marital united people.
To know more see Taxes, under this page Services.
Quotas cession/h6>
The free or onerous quotas’ cessions between alive people must be written and in case they are not between ascendants and descendants or partners, they need the society’s consent to take effect.
To execute a quotas cession contract to non-members representing more than 50% of the social capital a declaration is needed to prove the mount of eventual debts to the Social Security being the acquiring person solidarity responsible for them.
The quotas’ onerous cession
The quotas’ onerous cession in the societies holding real estate is subjected to the IMT payment (not to the IS), when, due to that acquisition, one of the partners disposes of at least 75% of the social capital or the partners’ number is reduced to two married or non-marital united people.
The quotas’ onerous cession implies the alienating person tax on capital gains.
The quotas’ free cession
The quotas’ free cession is subjected to the payment of the Verba 1.2. (10%) which exempts the spouse, the non-matrimonial united, the descendants, the ascendants; the exemption does not exempt the declaration.
The donation is declared to AT after the execution of the deed but before the registration request, with the delivery of the declaration Modelo I IS.
However, in case the donee is a legal person in IRC, if exempted, the donation is subjected to the IS payment.
Later, AT sends to the donee the settlement of the tax to be paid.
AT is informed about the donation with the quota free cession contract, the balance sheet and the declaration Modelo I IS filled and signed by the donee, including the donor’s identification, the donee’s and the quota’s (and the relation evidence, in case of exemption, and the copy of the donor’s and the donee’s identification documents).
The declaration is delivered in the finance department corresponding to the donor’s fiscal address or, in case he / she lives abroad, the finance department corresponding to the donee’s fiscal address.
The delay to deliver the Modelo I IS declaration is the end of the 3rd month after the execution of the donation (renewable for more 60 days in case of a justified difficulty); however, as the delay to registration is 2 months, the done must deliver the declaration before the limit date if he / she does not want to pay an additional cost for the registration which can be the double.
To know more see Taxes, under this page Services.
Quotas can be pawned.
Quotas’ unification
An only partner’s quotas can be unified if they are integrally liberated and no rights or obligations are implied.
So, a partner’s own quota cannot be unified with a common couple quota neither can an onerous quota with usufruct be unified with a non-onerous one.
Incorporated societies
Partners
Incorporated societies must be constituted with the participation of at least five partners.
Firm
An incorporate society firm can include the name or the signature of all, one or same partners, their initials, a denomination or all those elements gathered and followed by the expression Sociedade Anónima or the abbreviation SA.
Capital
Incorporated societies can be constituted with a minimum capital of €50000.
There are some incorporated societies having exceptional purposes subjected to a higher minimum capital.
The capital can be realized in money or in kind (goods) previously evaluated by a ROC.
When the entries in kind are real estate, the constitution of the society is subjected to the IMT and the Duty Stamp (IS) payment.
To know more see Taxes, under this page Services.
The entries in kind must be realized before or when the contract is done.
Only 70% of the increase value in cash can be differed, which means that each partner must realize 30% of his entries in money.
These 30% must be realized before the execution of the contract (or, in the case of the on-line constitution within 5 days after the access code to the permanent act is available).
The remaining, if in money, can be differed until a maximum delay of 5 years.
Partners declare in the contract that the realized money has already entered the society’s safety boxes (or, that it will be realized within 5 days after the access code to the permanent act is available).
Shares
The shares minimum nominal value is €0,01 and they are always nominative.
Shares can be pawned.
Change the social pact
Changing the social pact implies, for the first assembly request, the presence of those shareholders holding shares corresponding to at least one third of the social capital, and, for a second request, the presence of no matter how many shareholders (quorum for the assembly to act) and the deliberation must be approved in any case by a two thirds majority of the issued votes.
Capital increase
The capital increase, which is a change to the social pact, can be realized in money or in kind (goods) previously evaluated by a ROC.
The entries in kind must be realized before or when the contract is done.
When the entries in kind are real estate, the constitution of the society is subjected to the IMT and the Duty Stamp (IS) payment.
To know more see Taxes, under this page Services.
The capital increase identifies the amount of the new entries and its result amount for the quotas.
The increase can be done by increasing the shares’ amount or by issuing new shares.
Only 70% of the increase value in cash can be differed, which means that each partner must realize 30% of his entries in money.
These 30% must be realized before the execution of the contract (or, in the case of the on-line constitution within 5 days after the access code to the permanent act is available).
The remaining, if in money, can be differed until a maximum delay of 5 years.
Partners declare in the contract that the realized money has already entered the society’s safety boxes.
Registration
The registration intends to give publicity to the juridical situation of buildings, societies, social participations, cars, ships and aircrafts mainly to guarantee security for the juridical business and to promote the trust in the markets.
Registration in Portugal is merely declarative (just a mere demand of enforceability to thirds and not about the validity of the contract between the parts), but it is compulsory.
However, the registration of a society or a mortgage constitution is constitutive.
Registration states that the right belongs to the holder and exactly under those conditions.
The notary attends the real estate, the commercial and the car requests for registration related to the contracts she executes.
The delay to request for a real estate and a commercial registration is 2 months from the deed or registration taxes may be the double.
To know more see Registrations, under this page Services.
PAYMENT OF THE PRICE
Due to the usual amounts to be paid, the payment is not done in cash, except if not higher than €3.000,00.
The deed for the onerous transmission of immovable property must identify the number of the check issued for the payment (or similar) and its entity, or, in case it is a bank transfer, the accounts number of the person doing the transfer and the beneficiary, as well as the respective bank.
If the payment has been done before the contract (for example, the sign for the promise contract), that must also be mentioned.
In Portugal, the payment is done directly from the seller to the buyer.
The seller decides if he /she wants a certified check or not, so he / she must previously be contacted by the buyer to clarify this.
Whenever there is a mortgage over the credit institution, a certified or not certified check is need and it will be issued in the name of the creditor bank for the debt on that day.
DOCUMENTS
To make it easier for the citizens and the enterprises, the notary requests and issues the documents needed for the execution of the notarial acts in her office, using special portals such as:
- Civil, real estate and commercial acts;
- Certificates of notarial acts made in other offices or already kept in Torre do Tombo;
- Property registration documents (fiscal identification document of the building);
- Payment receipts of the Municipality Tax over the Property Onerous Transmissions and the Duty Stamp;
- Publishing the elements of the projected transmission contract to the public entities to execute the preference right;
- Admission of a name certificate to become a legal person, to change the name, to change the headquarters to another council or to change the object;
- Inscription of entities not subjected to commercial registration in the Ficheiro Central de Pessoas Coletivas, such as associations, foundations and foreign societies practicing an isolated act;
- Publishing acts related to legal people’ s life not subjected to commercial registration.
We point out the following documents needed to make a public deed:
USE LICENSE
Evidence
No acts can be executed involving the property transmission of urban buildings or their fractions without the evidence of the use license before the notary and by writing in the deed the license number and the issuing date or the exemption cause for licensing. If not so, the act can be nulled.
When the promise contract is made and it is promised that it will be made an onerous contract of transmission or constitution of real rights over a building or an autonomous fraction, already built, being built or to be built and the notary certifies with the authentication of the witnesses ‘signature that there is an use or a construction license; however, the promise seller can only apply for this omission of this requirement in case it has been the promise buyer’s fault.
Annexed to the property description
When the license is annexed to the property description, there is no need to present it for the deed.
Construction license
When the construction is concluded, if the request for the license use has been done for more than 50 days, the deed can be made with the construction license, even if not valid and the person transmitting makes some declarations.
Unfinished buildings
It is possible to transmit an unfinished building holding a valid construction license or being considered an unfinished building, except for autonomous fractions or single-family houses.
General Regulation for Urban Buildings
The General Regulation for Urban Buildings (REGEU), of the 07/08/1951, has obliged all the execution of new constructions or any civil construction works and reconstruction, enlargement, change, repair or demolition of the buildings and any works being done to issue a use license when those works are made inside the urban perimeter and the protected rural areas fixed for the council headquarters and all the others subjected by law to the urban and expanding planning.
So, although in general the license is compulsory for works made after 13/08/1951, when the REGEU has started, the truth is that outside the above-mentioned areas it has progressively been applied by municipal deliberation.
So, if a property was built in 1950 and in the property registration, the document from the Câmara, the public deed, the judicial act or any other similar document states that no works have been done in the property, no use license is needed.
It can happen that it has been built in 1953, after application of the REGEU but it was not applied for the location of the building which must be confirmed in the City Hall
In Lisbon, there are also some buildings holding a use license before 1951.
For industrial or collective constructions, the REGEU is applied for all national territory since the 13/08/1951.
Sale for confidential business in executive process
In this case, the sell can be done even if there is no license and the buyer must request for the construction legalization.
Works promoted by the State or Public Institutions
The buildings whose construction or use are exempted of a license because the works have been promoted by the State or a Public Institution, can be transmitted without the license presentation.
Urban rehabilitation
In case of an urban rehabilitation according to the foreseen in the detail plan for the urban rehabilitation, if the inspection is not determined within 10 days after the reception of the request for the permit to be issued, the responsibility act, when including all the clauses implied by the law with the request and the evidence that both have been presented to the responsible authority, has the same value of the permit and it even replaces it.
Ruins s
If the fact that a construction is in ruins is certified by the Câmara Municipal, the transition can be done without the exhibition of the license.
Division and share
The exhibition of the license is not needed.
Justification
The Instituto dos Registos e do Notariado has been considering more and more the compulsory fact of the use license to be exhibited.
ENERGETIC CERTIFICATE
The energetic certificate (CE) issued by a skilled expert (PQ) has been created by the DL no. 118/2013 of the 20/08 and its purpose is to inform the consumer, for his own protection, about the energetic capacity of the buildings based on a A+, A, B, B-, D, E and F evaluation, to present a sample of improving measures and to identify the components of the buildings and their technical systems.
The energetic certification, which must be requested by the owner, is compulsory for the new buildings but it is not for stores, parking, garages and similar, since there are no people there for more than 2 hours a day and not holding a space of more than 0,025 people/m2, for ruins or damaged buildings which may harm its use, based on a declaration issued by the Câmara or by a PQ.
The energetic certification is not needed in cases of acquisition in executive process or insolvency.
For the buildings already existing, the energetic certification is compulsory in case of sell, dation in payment or location and not for free contracts.
CE does not prevent the deed to be done, but it can start a process against the owner.
DATA SHEET
Definition
The data sheet of the property (FTH) is a document which describes the main technical and functional features of the urban building or the autonomous fraction to be inhabited, registered when the construction, reconstruction, enlargement or change works are finished.
FTH has been created to strength the consumer’s rights for information and to protect his economic interests when onerously acquiring the space.
Its elaboration, registration and deliver to the buyer shall be done by the real estate promotor.
Professionals
The FTH delivery to the buyer is compulsory for onerous businesses, when the person transmitting is a professional, when the purpose of the space is to be inhabited and when its use license has been requested after the 16/08/2004, date of the Portaria 817/2004, of the 16/07 (which has ruled the diploma that has created FTH, the DL no. 68/2004, of the 25/03 and approved the FTH form).
So, the spaces to be inhabited whose license has been required or issued before that date or that have been built, with no later changes, before the REGEU, published on 07/08/1951, are dismissed from this charge from the promotor.
Consumers
The transmission of the property can be done outside the professional area and in that case, the seller must deliver the FTH to the buyer if, when he has acquired the building already built, he has received the FTH.
However, the person who makes a construction after the mentioned date, if later he / she transmits the property, he / she must deliver the FTH to the buyer.
Provisional version of the FTH
If the property is alienated before its use license has been issued, the FTH can be replaced by its provisional version.
REAL ESTATE AGENCY
It is compulsory to state if a real estate agency has or has not taken part in deeds which entitle onerous transmission of real estate contracts, and, if it has, its denomination and license number must be presented next to the InCI.
The notary advises the holders to include the participation of the agency in the documents and warns them for the fact of eventually being punished for disobedience if they do not do so.
PARCELLING
Constitution or transmission of parcels
Parceling means to constitute one or more parcels to an immediate or subsequent urban edification which results from the division of one or several buildings or their new parceling.
When there is a juridical business that results, directly or indirectly on the constitution or transmission of parcels for urban construction, they must include:
- The evidence that all clauses of a previous control (highlight) exemption are gathered or
- The number of the license or the previous communication, the issuing date of the title, the validity date and the property registration act.
Urbanistic operations promoted by public administration are exempted from license.
1st transmission of buildings or their autonomous fractions
First transmission acts of buildings or their autonomous fractions in parcels which result from a parceling license cannot be done without:
- An act issued by the Câmara Municipal as evidence of the provisional reception of the urban works or,
- An act issued by the Câmara Municipal as evidence of the security deposit of the parceling holder is enough to guarantee the execution of the urban works,
- An act issued by the Câmara Municipal as evidence of the conclusion of the urban works, duly executed according to the approved projects whenever urban works are promoted by the Câmara Municipal on the parceling holder’s account.
This is not applied for those parcels which are a result of a parceling whose license has been issued under Decree-Law no. 289/73, of the 06/06, and Decree-Law no. 400/84, of the 31/12.
The buildings whose autonomy is proved to exist before 1973 do not need a document from the Câmara Municipal to become autonomous.
INCREASE IN THE NUMBER OF OWNERS
The increase in the number of owners because of the onerous or free transmission, of a rustic or mixed building, is subjected to a previous authorization of the local Câmara Municipal.
A couple (and the non-marital united) is considered a sole owner, in case the good is common.
LAND STRUCTURE
Fractioning of land for culture
Land for culture cannot be parceled in smaller areas than the culture minimum unit established for the area or they might be nulled.
The constitution of usufruct over a land parcel implies parceling.
The parceling prohibition is not applied:
- For lands which are a part included in a urban building (public spaces) or which are used for different purposes than culture;
- If the person acquiring the parcel from the parceling owns the contiguous land, since the area of the rest land parceled is not less than the culture minimum unit;
- If the purpose of the parceling is to rectify the limits of contiguous properties having irregular polygons;
- If the purpose of the parceling is to separate some land for construction, in case the parceling rules are applied; this parceling is nulled within 3 years, in case after 3 years the construction has not begun.
Find here the culture minimum unit for Continental Portugal
Find here the culture minimum unit for Madeira Island
Change of land for culture
The change of land for culture is possible or otherwise nulled when:
- Both lands have a similar or larger area than the culture minimum unit;
- One of the lands has a smaller area and one of the owners acquires a contiguous land to another one he / she holds, and that acquisition allows him / her to have a new building with the same area or a superior one than that unit;
- No matter the land area, both people exchanging have acquired a land which confines with a property he / she already holds.
PREFERENCE
Definition
The right of preference is the right someone holds to be replaced by someone else to acquire during an onerous contract, in the same conditions agreed with that person.
So, if for example the owner (the preferred one) agrees with a third one to sell a property, he /she (the preferred one) has the right to acquire it in the same conditions previously agreed with that third one.
The preference right can start with a contract or a testament (conventional right of preference), but it can be imposed by the law (legal right of preference).
The legal right of preference always prevails over the conventional one and it has real efficacity, although it is not subjected to registration.
The acts which originate the exercise of the preference right are in general the purchase and sale and the dation in payment.
Conventional right of preference
The conventional right of preference can have a mere compulsory efficacy, just opposed by the parts, and in that case if the good is sold to a third who does not know the contract, the person preferring just has the right to an indemnity.
Real efficacity can be given to the conventional right of preference by making a public deed contract and its further registration, and in that case the contract can be opposed not only between the parts, but also before thirds and the person preferring can be replaced by the third in the contract by judicial means.
Legal right of preference
The legal right of preference, not subjected to registration, is a limit to the private autonomy, for the choice of the part who the contract is made with.
The preferred person holds the freedom to contract only if he / she whishes to, but if he / she does, it must be done under the same conditions offered by a third one.
In general, the legal preference rights exist just in case there is a sell or a dation in payment.
There are several legal preference rights foreseen by law and created in favor of privates or public entities.
Notification
The preferred person must be notified about the project to do a contract which includes all the essential elements of the business, and the delay for the preferring person to express his / her interest in the acquisition is, in general, 8 days.
When there are several holders of the right of preference, it must be applied together by those who are interested in applying for the right and bidding between them if the right is applied just by one.
Selling something with together with others
The preferring person can apply for the preference for one of the things, by the proportional price, unless the owner proves that thing is not separated without a considerable prejudice and in that case he / she must acquire all the things.
Lately, it has been really discussed the question of the possibility for a tenant of an apartment in a building holding no horizontal property to apply for his / her preference right just over that apartment or over the whole building, and the tendency is to exclude both.
Legal right of preference over privates
Co-owner
The co-owner, in case of sale or dation in payment of the other co-owner’s share, has the preference right and his / her right is graduated in first over the other preferring.
Co-heir
The heir has the preference right in case of sell or dation in payment of the fair share of another heir in the inheritance, and his / her right is graduated in first over the other preferring.
Owner of an onerous building with legal right of trespassing
The owner of an onerous building with legal right of trespassing (building subjected to being trespassed) has the preference right over the sale or the dation in payment of the dominant building (building over the which the legal right of trespassing is constituted).
Rural or forest tenant
The rural or the forest tenant holding a contract for more than three years, has the preference right in case of sale or dation in payment over the located space, and it is exempted from IMT payment for the acquisition.
However, this right declines before the preference right of the co-owner or the co-heir’s.
The rural or forest tenant who acquires the property based on this legal preference right must explore the building for, at least, five years.
Owner of a confining land with a smaller area than the UMC
The owner of a confining land with a smaller area than the culture minimum unit (UMC) has the preference right over the sale or the dation in payment of the confining building in case the third interested is not confining.
If many owners hold that preference right and the building to be alienated is a jammed one, the right of the owner of the onerous building having right of trespassing in favor of that jammed building prevails.
Secondly, it is the right of the owner who, by using his / her preference right, gets an area which is closer to the local established UMC.
That preference right does not exist if the land is a common part of an urban building (public space) or if its purpose is not culture, as well as when the land alienation is made together with others which, together or not, make an agricultural exploitation of a familiar kind.
Find here the UMC for Continental Portugal
Find here the UMC for Madeira Island
Owner of a rustic or mixed building included in a RAN area
The owners of rustic or mixed buildings included in the National Agricultural Reserved area (RAN) hold the preference right over alienation or dation in payment of the rustic or mixed confining buildings.
To be parceled, the UMC in a RAN area corresponds to the triple of the UMC established for that area.
Urban tenant
The urban tenant having established a contract for more than three years and if he / she is not obliged to give the space back to the owner, holds the preference right over the sale or the dation in payment of the rented property and that right prevails over the owner’s.
The renting must be done over an autonomous fraction or over the whole property.
Space or institution recognized as having historical, cultural and social interest in the area
The tenant renting a space recognized as having historical, cultural and social interest in the area, holds the preference right over the onerous transmission of the property or the part he / she rents.
He is given a delay of 30 days to apply for his / her right.
Municipalities hold that preference right in the same cases too.;
Transmission agreement
In case of a transmission agreement made for a commercial or an industrial space or an office for a liberal profession in a rented place, the owner holds the preference right in case there is a sale or a dation in payment unless the parts agree differently.
Owner of the space
The owner of the onerous space having the surface right holds the preference right, in last, over the sale or the dation in payment of the surface right.
Remission
The spouse not judicially separated of people and goods, his /her descendants and ascendants hold the right, in the mentioned order, to acquire their relative properties adjudicated or sold through an executive sale, or a part, by the same price of that adjudication or sale.
The remission right prevails over the preference right; however, when there are several people preferring, if there is a bidding between them, the remission must be done by the price corresponding to the highest bid.
In case several descendants or ascendants apply for the remission, the preference goes to the closest degree and in case there is equality there will be a bidding.
Legal preference right in favor of public institutions
Public institutions are all considered notified 10 working days after the date of the advertising disposal, if it is published in the on-line real estate registration portal.
This publication has the advantage of creating several communications to public institutions to exercise the preference right.
Juridical regime of the Territorial Management Instruments
Municipalities hold the preference over the onerous transmissions between privates in lands or buildings located in areas of plan with a designed execution, and that right can be established by a declaration stating that the conveyed price is not accepted and that the price to be paid will be the foreseen for the litigious expropriation process in case the owner does not accept the price offered by the municipality.
IMT and IS
In case it is proved that the price which has been declared for a sale was not correct or simulated and the difference with the right price is more than 30% or €5000, the State, the local authorities and the other legal people of public right may have a preference on the sale.
To do so, the Direção Geral dos Impostos allows local authorities to get the information about all the contracts made the previous month.
This preference right also occurs for transmission contracts over commercial, industrial or agricultural spaces and it is similarly regulated for the taxes in these cases (Duty Stamp Tax).
Cultural patrimony
The co-owners, the State, the Autonomous countries and the local authorities hold in the mentioned order the preference right in case of sale or dation in payment of classified goods or ready to be classified or located in a general or specific area of protection of those properties.
The owner must previously communicate the sale project to the Direção Geral do Património Cultural and prove before the notary that communication has been done, as when that same communication is not done maybe the deed cannot be done.
This communication can be replaced by a publication in the on-line real estate registration.
Space or institution recognized as having historical, cultural and social interest in the area
Municipalities hold the preference right over the onerous transmission of the property or a part of a space recognized as having historical, cultural and social interest in the area.
Georeferencing
The georeferencing regime and the Balcão Único do Prédio has started, as a one-year essay, for the municipalities in Pedrógão Grande, Castanheira de Pêra, Figueiró dos Vinhos, Góis, Pampilhosa da Serra, Penela, Sertã, Caminha, Alfândega da Fé and Proença-a-Nova.
The buildings have now an identification number (NIP) and are referenced by skilled technics.
For the acquisition registration request it is compulsory to indicate the georeferenced graphic representation number, except if it has already been delivered and it is stated in the BUPi Balcão Único do Prédio, if the building has an inscription in the registration department or if it is an act established during an executive or insolvency process.