Right to the limit

news: Right to the limit

I am becoming concerned that my diary may appear to readers to be full of tales of property disasters. These problem cases are few and far between, but, hopefully, serve as a warning to avoid similar problems occurring in the future. As a small diversion, I will start with some good news – the ‘ficha técnica da habitação’.

A new law has been passed which requires every new property to have a full description of how, when and who built the property. Some builders, developers and estate agents are not pleased at yet another piece of bureaucracy placed in their way. While it may not be a perfect document (all 20 pages of it!), anything that strives to bring clarity, transparency and more responsibility should be encouraged. Every time a property is sold, a lot of useful information is not passed on to the new owner from the previous one. The new document will accompany the property every time it is sold. The document will have information and plans pertaining to the building.

There is a problem, however – the law refers to new properties as those which were issued with, or have requested, habitation licences after March 30, 2004. A grey area appears to be those owners of pre-1951 properties who do not have habitation licences. If they want to extend and/or legalise their property, it seems that they also have to supply this document when they sell. Trying to find out the names of the builders and architects of a 100-year-old farmhouse could prove difficult! Let us hope that exemptions will be given in this case and that the word ‘deceased’ proves acceptable. Either way, they will have to pay for the services of an engineer to complete the form. When purchasing a property, one of the best pieces of advice you can get is, ‘get a lawyer to check out the paperwork’. The importance of this cannot be stressed enough so that a property can be sold safely and quickly.

While a lawyer will check all matters relating to the Notary, Tax Department and Land Registry, will they ever actually go to the property? Who will check that what is actually registered on paper is what is built? Who will check that the area of the buildings and land are exactly the number of square metres registered? How are the boundaries of the property defined? Do the adjoining neighbours agree with the current boundaries? Do any rights of way exist across the property? Should you lose sleep worrying about all this?

The answer, of course, is no. If buying property was such an uncertain, worrying affair, very few of us would do it. The in-situ checks that should be done are fairly simple and inexpensive. Between a Chartered Surveyor or Engenheiro, a Land Surveyor or topografo, and a lawyer, all possible areas of doubt can be checked. Cases to be avoided are:

Mr. A made an offer on a lovely converted farmhouse with a small plot. When the owner – having lived abroad and not visited the property for some time – refused the offer, the agent pointed out that it was reasonable considering the size of the plot, as there was only space to park one car at the side of the house. “One car!” said the owner, “I was considering putting a tennis court there when I bought the property!”. Absent owners are easy targets for unscrupulous neighbours who move marker stones in order to increase the value of their property. Fortunately, the owner in question had all his paperwork in order and also a topographic plan of the land he had bought duly signed by the neighbours.

Mr. B bought a house in a large, square plot. The plot was fenced across all four borders. Not long after he bought the property, a total stranger informed him that he had bought a strip of his land some years before. This three metre wide strip would give access to his plot to the rear. In order to verify this, Mr. B contacted the neighbour to the east who had, allegedly, sold the strip of land. Much to Mr. B’s surprise, the neighbour confirmed this sale. When asked why the stranger had never used the strip of land, the neighbour replied that the stranger had only needed it now, as he wanted to start building his house. When Mr. B asked the neighbour why he had not told him of this before, the neighbour answered, “you never asked”.

The problem does not restrict itself to rustic land – urbanisations have been known to have errors in the measurement and marking of plots. The plot may have been approved with X square metres, but if the builder was slightly awry in building the roads, square metres have been known to transfer from one plot to another. Local câmaras and Land Registries are usually flexible if the real area of a rustic plot is within 10 per cent of the registered area, the areas of urban lots have much more accuracy. A significant difference could stop a câmara approving a project on a plot. Some urbanisations contain ‘green zones’, which can be used, leased, or rented, but never sold. After many years, these areas become integrated into the garden of the property and can easily be assumed to be part of the plot.

Most projects lodged with the câmara have topographical plans already made. These can be inspected and can save you the expense of having another one made. If not the services of a surveyor could prove invaluable – and help you sleep soundly.

• Jordan & Hart Lda, Avenida 5 de Outubro 242, 8135-103 Almancil. Tel 289 395 542, Fax 289 391 214 or email [email protected]