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The legalisation of illegal construction work

Decree-Law No. 136/2014, of September 9, has introduced a number of amendments to Decree-Law No. 555/99, of December 16, which establishes the legal regime of urban planning and building (RJUE). The amendments came into force on January 7, 2015.

The main changes include the introduction of supervisory measures regarding urban legality, in order to address and regularise illegal constructions, with emphasis on the legalisation procedure laid down in article 102-A of RJUE.

Through the legalisation procedure, the legislature establishes a mechanism that grants individuals (offenders) the possibility of regularising unauthorised building work.

However, legalisation is only admissible if the City Council concludes that the building work was or may be performed in accordance with the legal provisions and regulations in force, by means of works of correction or adjustment.

The problem is that many illegal constructions were carried out several years, or even decades, ago and are therefore not likely to comply with the technical standards currently in force.

For these situations, the legislature has established the power of exemption from compliance with technical standards relating to the construction, but only with regard to these standards. Thus, exemption from compliance with technical standards is only permitted if:

a) There is no violation of any territorial management instrument in force;
b) One can prove that the fulfilment of such technical standards is impossible or requiring them is not reasonable;
c) The technical conditions in force at the date of completion of the building works have been fulfilled.

Note that, in accordance with paragraph 5 of Article 102-A of RJUE, with regard to construction work that does not comply with the technical standards in force, the applicant must prove the date of construction, so that the applicable technical standards may be determined, for which purpose all means of evidence admitted by law shall be accepted.

With regard to the legalisation initiative, it can be either private or ex officio.

Regarding legalisation of private initiative, the administrative entity is obliged to respond within 15 days, indicating the terms in which the regularisation procedure must take place.

Regarding legalisation of ex officio initiative, it is the administrative entity who analyses the actual situation and, if it concludes that the construction complies with the technical standards and regulations in force, the individual (offender) is invited to submit an application for legalisation, whereby a deadline will be granted for this purpose, along with an indication of the elements that should be attached to the application.

The legalisation procedure may or may not be dependent on the execution of works, whereby the supporting elements may vary according to the building work in question. Although there is a set of requirements applicable to the legalisation of a construction, some may be dismissed, but the City Council will always have the last word regarding the elements that should be attached to the application for legalisation.

Finally, it should be noted that, in order to safeguard future purchasers in good faith, the construction certificates subject to legalisation procedures shall include the following special information:
a) The construction work has been subject to the legalisation procedure;
b) Which are the construction projects subject to regularisation;
c) The use of the power granted in paragraph 5 of article 102-A of RJUE, when applicable.

By Dr Eduardo Serra Jorge
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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
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