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Is housing rental in properties for commercial purposes possible?

A clause must be included in the lease agreement indicating its purpose. If the contract is silent on this aspect, the leased place may be used for the purpose that is within the scope of its capabilities, as set out in the use license. So, is it possible to lease a shop for housing purposes? It depends.

According to the legal regime in force, “only buildings or fractions thereof whose suitability for the purpose intended by the contract is attested by the use license can be subject to urban leasing”, and leasing for a purpose other than that of the licensee is null and void. This is what explains Márcia Passos, contract partner and Real Estate coordinator at PRA – Raposo, Sá Miranda & Associados.

Nullity of the contract and fines

If a specific property is intended for commerce, it cannot be the subject of a contract for housing purposes, whether permanent housing, non-permanent housing or special transitory purposes.

Violation of this rule results in the nullity of the contract, which means that the rental relationship is non-existent and that the property is occupied improperly, which may have consequences in terms of civil liability.

Nullity, in turn, based on the violation of a mandatory legal norm, will result in the imposition of a fine on the landlord and, in principle, gives the tenant the right to compensation, as well as the right to terminate the contract. for reasons attributable to the landlord.

The amount of the fine owed by the landlord in the aforementioned circumstance, for any imputable cause that is attributable to him, amounts to no less than one year's rent.

Living in a property for commercial purposes: implications

The subject also gains relevant importance when we are faced with the need for a lease contract to substantiate and justify a certain state benefit. This is what happens, for example, with the benefits granted under the program that creates the financial support instrument for renting for young people, known as Porta 65.

In fact, in addition to several requirements that young people aged 18 or over and under 35 must meet, such as, for example, not being owners or renters for housing purposes in another building or housing unit or being relatives or similar to the landlord in the direct or collateral line, applicants for the benefit must be holders of a lease contract registered on the Finance Portal or a lease promissory contract, the latter in accordance with the model approved by ordinance.

Having said that, it will obviously be out of the question to grant a benefit such as Porta 65 or any other, based on an invalid document and, as said, a lease signed for a purpose other than the purpose for which it is licensed, is a void contract, therefore, an invalid and ineffective contract.

If a young person – in the case of the applicant to Porta 65 – is faced with a situation such as the one described (void contract), he/she must endeavor to sign a valid contract which, in view of the above, will imply changing the place where he/she resides (a space whose purpose is commerce) to a place legally suitable for housing purposes.

Converting stores into housing: impact of the new simplex

In this regard and without prejudice to the foregoing, it should be noted that the Decree-Law that approved the so-called “Urbanistic Simplex” (DL no. 10/2024, of 8.01) simplified the process of changing any autonomous fraction in property horizontal from non-residential purpose to residential purpose (the reverse does not apply in the same way).

In fact, the owner who currently intends to change the purpose of his fraction from commerce to housing, no longer needs authorization from the Condominium for this purpose, being able to change, by unilateral act, being only obliged to inform the Condominium Administrator of this change, within 10 days after said change.

However, the causes for the invalidity of a lease contract remained, namely that arising from the conclusion of a housing lease contract in relation to a property whose purpose is different from the housing purpose.

Read the full report here.

Source: Idealista


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