Armação de Pêra.JPG

Public Water Domain – Occupation and recognition of private property

Water domain under the Portuguese legislation had its origin on a Royal Decree of the year 1864. Since then, the coastline and riverbanks have become property of the Portuguese State.
An update of the existing Law 54/2005 of November 15 regarding the registration of properties near public water domain, namely water beds, margins of sea or any navigable or buoyant waters, was approved by the Parliament in May and came into force on July 1 – it is Law 34/2014 of June 19.
This law updates the previous mentioned Law 54/2005 of November 15, which dictated that all owners with properties built less than 50 metres from the sea, river or dams had to prove until July 1 2014 that they were privately owned before 1864 – instead of owned by the government.
Currently, one of the developments worth noting due to the alterations in Law 34/2014 of June 19 is that the deadline to declare private ownership of the properties situated less than 50 metres from the sea, river or dams, has ceased to exist.
That said, there are currently no deadlines to register those types of properties.
It is merely necessary for the owner to prove that the properties were already private before December 31 1864 or when regarding steep cliffs (described in Portuguese as ‘falésias alcantiladas’) before March 22 1868.
If by any chance the documents serving as proof of ownership before the years of 1864 or 1868 have become illegible or have been destroyed by a fire or an event with similar effect, it will be presumed that those very same documents concern private properties, if these were proved to be so before December 1 1892.
Another major change provided by this recent update in the law concerns the administration of public water domain areas. As to this matter, up until January 1 2016, the national water authority will make accessible and public the areas of the Portuguese territory that are considered of public domain, namely coastline areas or any other type of navigable waters in our jurisdiction. January 1 2016 is the deadline for the water authority to complete marking of these areas.
The indicated entity will also be responsible for regular updates of these areas.
With regards to dams and reservoirs, Law nº34/2014 also covers property in lake and river reservoirs even when used for public purposes, including electricity production and irrigation.
In order to prove private ownership, the process should be made judicially in a common law court, including an application to the President of the APA (Portuguese Environment Agency), a Certificate of Land Registry and the following building location and identification documents:
a) A cadastral plan of the building;
b) A location plan consisting of an extract from a 1:25000 scale, which will include the area where the fence is and clearly marking the location of the building;
c) A topographic survey of the building with the content mentioned on the Annex II of Ordinance 931/2010.
By Dr. Eduardo Serra Jorge
|| [email protected]
Dr Eduardo Serra Jorge is founding member, senior partner and CEO of lawyers firm Eduardo Serra Jorge & Maria José Garcia – Sociedade de Advogados, R.L., created in 1987.
In his column, he addresses legal issues affecting foreign residents in Portugal.
Faro office at Gaveto das Ruas Pedro Nunes e José de Matos, 5 R/C
289 829 326