Cibereal, Lda. - Serviços Imobiliários Profissionais

Tradução de parte da legislação e regras do imobiliário em Portugal

Licensing Requirements Portugal

Estate agency business in Portugal is regulated by Decree-Law no. 211/2004, of 20 August. Companies which wish to operate, as estate agents, shall obtain a license to be issued by the Instituto de Mercados de Obras Públicas e Particulares e do Imobiliário (IMOPPI).Licenses shall be granted and maintained provided all the following requirements:
All estate agents are required to adopt the form of a company. This is particularly possible now that the law permits the incorporation of single-person companies (sociedades unipessoais), a legal form which has proved especially suited to the healthy development of small companies, in line with the trends in this sector, in order, also, to facilitate inspection;
Applicants shall have no outstanding debts to the fiscal and social security authorities;
One of the directors or managers of the company shall be professionally qualified;
The company shall have positive net worth;
The directors or managers of the applicant company shall be persons of good commercial repute.
An third party insurance shall be provided;
In view of continuous expansion in business and the rising expectations of consumers, the new legislation review the rules governing business in this sector, therefore:
Tighter requirements were introduced for licensing estate agents, based now on the good name and professional capability of the managers, and on the financial capacity of the company, as demonstrated by the requirement that companies have positive net worth;
Rules were established on how companies, their representatives and service contractors are to be represented;
Clear regulations were introduced on when and on what terms charges and fees are payable for the services of estate agents;
Companies are given new duties both to clients and to the licensing authority, thereby instituting a more comprehensive regime for offences;
New accessory penalties are instituted, extending the range of serious offences punishable by banning from professional practice and closure of establishments.

Foreign Ownership in Portugal
Foreigners are permitted to own property in Portugal and are granted the same rights as portuguese nationals.
There is nothing significant that foreigners need to adhere to in purchasing portuguese property. They are granted the same rights, obligations and restrictions as portuguese’s and should check local government authorities for ownership issues such as taxation, restrictive covenants, etc. Concerning the exercise of estate agency in Portugal the law established that the exercise of estate agency by companies with effective principal place of business in another State of the European Community is also subject to the provisions of the Decree-Law mentioned above (211/2004, of 20 August) whenever such activity relates to property situate in Portugal.

Land Registration System in Portugal
The Land Registry has a record of property ownership, with a complete description of each property on a material, economic and fiscal level, being able any citizen to require information regarding an enrolled building in the Registry.
Thus, to analyze the “history” of the property, it’s necessary to require the emission, through proper model, of a document certificate of the full record of the title and dealings regarding the property. In the Finance Bureau, in turn, the properties are enrolled in accordance with a number. These numbers, assignment of articles, are called "matriciais ".
Trough the Finances Bureaus is possible to know about the fiscal situation of a house and to know who is entity responsible for the fiscal obligations related to the property.
The document that demonstrated the fiscal situation of the property is named "Caderneta Predial". We can have two types of Cadernetas Prediais:
- Urban Caderneta Predial.
- Rustic Caderneta Predial.
Registration of a sale follows the signing of the Escritura Pública (title deed), which must be done in front of a notary. The notary acts as a neutral public officer, charges a scale fee and is responsible for confirming and recording in the Escritura Pública that correct payment has been made. Before this stage you will normally be asked to sign a promissory contract and pay a deposit - you may forfeit the deposit if you withdraw - if the vendor withdraws he may have to compensate you. You will normally make staged payments if you are buying a property in construction. The notary  is there simply to ensure that the legal process is correct.

Tax Information for Portuguese Property Owners
A) Municipal Property Tax (IMI)
The tax on property is regulated by Decree-Law no. 287/2003, of 12 November, substituting the older Contribuição Autárquica. This is an annual municipal property tax calculated upon the patrimonial tributary value of rural and urban properties situated in the Portuguese territory.
The Municipal Property Tax rates are as follows:
Rural Properties ................................................................................................0, 8%
Urban Properties appraised under the old rules: ................................0, 4% to 0, 8%
Urban Properties appraised under the new IMI rules..........................0, 2% to 0, 5%
Tax resident in an offshore owning a building in Portugal.................................0,5 %
It is the responsibility of the municipality to define each year the applicable rate, such decision from the Municipal Board being communicated to the Directorate General for Taxation by 31st December of the year concerned.
Immovable property is classified as rural, urban and mixed.
The following types of property are considered as rural:
Property connected with, or merely having as its normal purpose, any use giving rise to agricultural income;
Property which, although used for other purposes, is not built-in or has only buildings or construction of an accessory nature, without an economic autonomy and of a limited value;
Property located within an urban center that cannot be used for profitable purposes, or can only be used for agricultural purposes and is effectively used for such purpose;
Buildings and constructions directly used for the production of agricultural income, if located in land as above referred to;
Waters and plantations in the above mentioned situations.
There shall be classified as urban property, properties that are not classified as rural. Urban property can be divided into:
Housing, commercial, industrial buildings or buildings designed for the exercise of an independent professional activity, being considered as such buildings or constructions licensed for that purpose, or, in the absence of a license, whose normal use is in connection with one of the above mentioned activities;
Building land: that located inside or outside an urban center, that has been granted a license for land-lot division, has a project approved or has been granted a building license, as well as any land that has been so declared in its acquisition deed.
There shall be classified as mixed property, property partly rural and partly urban, being not possible to classify either of them as the principal one.

Personal Scope
The taxable person is the owner, the usufructuary or the party having the use or the fruition of the property on the 31st December of the year to which the tax relates.
There shall be exempted from local real estate tax, in particular:
Urban housing property or part thereof, constructed, enlarged, improved or purchased for the permanent residence of the owner and effectively assigned to such purpose, within six months after the purchase or completion of the construction, enlargement or improvements, except for a reason not imputable to the beneficiary thereof;
Property or part thereof, newly constructed, enlarged or improved, or purchased, for that part designed to be rented for dwelling purposes, provided that the above conditions are met;
The exemption period in the two preceding cases shall be determined in accordance with the following Table:
Taxable Amount (euros)                                  Period of exemption (in years)
Up to  150 000                                                      6 years
From  150 000 to  225 000                                   3 years
B) Municipal Tax on Property Sales and Transfers (IMT)

The Municipal Tax on Property Sales and Transfers (IMT) is a local municipal tax that is levied on the transfer of real estate assets or the transfer of property rights for such assets or subdivisions of them.
This tax will be charged at a single rate of 6.5% on the sale or transfer of urban property not for habitation. The single rate for rural properties is 5%. However, reductions and exemptions will be considered when properties are sold or transferred for industrial or other activities of recognized economic interest to Portugal.
The tax is levied at a rate of 15% whenever the purchaser has their residence or headquarters in a country, territory or region with a tax regime that is clearly more favorable.
In regard to the sale or transfer of urban buildings or apartments exclusively for habitation, the tax is levied at the following rates:
Taxable Value (euros)                                 Percentage Rate
Marginal Rate  Average Rate
Up to 82 000 0 0
From 82 000 to 112 000 2 0,545 5
From 112 000 to 153 000 5 1,733 3
From 153 000 to 255 000 7 3,840 0
From 255 000 to 510 000 8 0
Above 510 000 Single rate 6

C) Offshore Companies
The treatment of offshore property owning companies, whose registered office is in a tax haven (a list has been published by the Minister of Finance), will be subject to new rules and taxes; payment of IMT at a rate of 15% and yearly IMI at a rate of 5% of their corrected taxable value until revaluation under CIMI.
15% IMT on purchase
25% Capital Gains on profit on sale
5% IMI on corrected taxable value/revaluation

D) Stamp Duties
Stamp duties are levied for certain legal documents, books, papers and other items. Transfers free of charge to legal heirs (gifts or inheritances to spouses, ascendants and descendants) are not taxed in Portugal

Other Industry Professionals Portugal
Portuguese legislation determines that companies, which wish to operate as real estate agencies, shall obtain a license and fulfill all the legal requirements demanded. Only those who are licensed can exercise the real estate activity in Portugal.There are several other professionals who work in the real estate market, but in different activities. For this purpose, we distinguished, as most important, the following ones:
Property Management;
Development/ Promotion;
Legal/ Tax
Practitioner Dispute Resolution Systems Portugal
Practitioner dispute resolution systems are currently in development and should be in place by 2006.
In order to guarantee its liability to clients and interested parties deriving from Real Estate Agencies business activities, Portuguese Law established the following measures of guarantee:
Real estate agencies shall take out third party insurance, of a minimum value to be fixed by joint Ministerial (currently the minimum amount is euro 150 000).
IMOPPI (Instituto de Mercados de Obras Públicas e Particulares e do Imobiliário) is the public portuguese institute that inspect and oversee estate agency activities.
Without prejudice to any other penalties, which may be applicable, the violation of the legal duties is punishable by the application of determined fines.
When justified by the seriousness of the offence, the following accessory penalties may also be applied:
Closure of establishment;
Banning from estate agency.
Privation of the right to participate in fairs or markets.
The new legislation establish, also, the possibility of application of preventives measures, when elements of offences practice’s, punishable by fines, equal or superior to € 15 000, exists. Those measures are:
Preventive closing of the establishment;
Suspension of the licensing order.

Practitioner Services Portugal
By the Portuguese law, restate agency business is "...whereby a company undertakes, on the basis of a contract, to take steps to find an interested party for the purchase or sale of property or for the constitution of any real rights over the same, or for the lease or business lease of such property, carrying on to such end promotional activities and gathering information on transactions sought and on the characteristics of the respective properties" (Decree-Law no. 211/2004, of 20 August).
Within the scope of estate agency contracts, companies may also provide services relating to the obtaining of documentation needed in order to conclude the desired transactions, where this is not sole legal preserve of other professions.
The portuguese real estate agents need to fulfil the following duties to their clients:
Check, at the moment of the agency contract celebration, that the persons involved in the transactions to be arranged have capacity and legitimacy to contract;
Check, at the moment of the agency contract celebration, through all means at their disposal, whether the characteristics of the property to which the agency contract refers correspond to those declared by the interested parties and whether the property is subject to any charge or encumbrance;
Obtain information from its clients and provide information to the interested parties in a clear, objective and appropriate manner, namely with regard to the characteristics, composition, price and terms of payment for the property in question;
Propose, in precise and clear terms, the transactions entrusted to them, acting in such a way as not to mislead the interested parties;
Notify the interested parties immediately of any fact that jeopardises the conclusion of the desired transaction.

Relationship of Buyer/Seller to Practitioner Portugal
In order to represent their client’s real estate agencies must celebrate an Estate Agency Contract, that shall be drawn up in writing, with the following elements:
The duties of the parties;
Identification of the characteristics of the property which constitutes the material subject matter of the contract, detailing any charges or encumbrances on the same;
Identification of the transaction in view through mediation by the estate agent;
The terms of remuneration, namely the amount or percentage, and terms of payment, indicating the VAT rate applicable;
Identification of the insurance companies through which the third party insurance has been made.
In general the agents represent one part, but it’s possible to celebrate an Estate Agency Contract with both buyer/ seller. In this situation the real estate agency can not receive remuneration from both interested parties in the same transaction, such remuneration being payable only by the party which first contracted them, unless expressly agreed otherwise.

Remuneration Portugal
The real estate agent generally works on a commission basis.
Concerning the Portuguese real estate legislation the remuneration shall only be due on full conclusion of the transaction brokered by the agent. There are two exceptions to the above mentioned.
Cases where the transaction in view, under an agency contract concluded on an exclusivity basis, is not concluded for reasons due to the client of the estate agent, in which case the latter shall be entitled to remuneration;
If a "promissory agreement" is concluded with regard to the transaction in view in the agency contract, the parties may agree for the remuneration to be paid when such agreement is concluded.
The real estate agents shall not receive any sums by way of remuneration, or down payments on the same, prior to the moment when such remuneration is due under the terms described.
In the event of the estate agent having concluded agency agreements with both the parties in the same transaction, for which the material subject matter is the same property, remuneration shall only be payable by the first party to have contracted the agent, unless all the parties expressly agree to divide such fee.