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Local Accommodations: Does a Requirement for Neighbour’s Authorization Involve Property Rights?

14 January 2018

Experts say the requirement would limit the freedom to use homes as wished. The PS political party, which wants to change the law, denies that that is the case.

Can one’s neighbours decide how you use your home? This is an issue that is at the heart of yet another controversy surrounding the regulations governing local accommodations (AL), following a bill that two Socialist Party (PS) MPs, Carlos Pereira and Filipe Neto Brandão, presented.

According to the proposal, one of five presented in Parliament and which intends to change – once again – the law that regulates the sector, a requirement for property owners to get permission to use their homes in the local tourist accommodation market would become mandatory. This is because, according to the PS, tenants “are expected to meet conditions for tranquillity and quiet that are associated with the home,” and as local accommodations have a “high turnover of occupants”, that leads to less quiet.

But does this need to become law, or is it sufficient for tenants to follow existing condominium rules and use their common sense, as has been the case so far? Does the proposal call an essential right into question? In other words, can we use our homes as we wish, provided that the use is legal and falls within the condominium’s rules?

Margarida Osório de Amorim, a lawyer at PLMJ who is specialised in tourism, has no doubt: “If the law obliges landlords to get authorisation, it will limit the fullness of our property rights and that will open a veritable Pandora’s box, one which we would be better off leaving closed. Will they then change the Rental Law and require that rentals, in general, be subject to prior authorisation?” Ms Amorim queried Expresso.

The lawyer agrees that neighbours have the right to not want a local accommodation in their building, but, in her opinion, there is no need to change the law. Having controls, supervision and compliance with good practices of the condominiums, or changing the rules should be enough. Altering the law may, in addition to limiting the right of ownership mentioned above, create litigation between tenants, leading to situations where condominium owners could offer to accept AL, while requiring a share of the income, or, possibly charging higher condominium fees for those tenants who are involved in the AL market. Moreover, “it could bring an activity, that is functioning well, and that has brought so many benefits to the country and the economy, to a halt,” bringing back the clandestine uses that were prevalent in the past.

“The PS’s proposal focuses on possible disturbances to the local peace, but such problems can arise with any bad neighbour, or it could be a professor who attends pupils at their home, or with a neighbour who has an extensive family.  All problems with neighbours do not necessarily have a direct connection with local accommodations,” Margarida Osório de Amorim stated.

But the two Socialist deputies do not agree. “A tourist is, by definition, someone who is just passing through, who goes on to other places. This transience leads to, as a rule, much more relaxed behaviours than are usually adopted by someone in their permanent residence. And this translates, quite often, into late hours, noise, respect – or, better, the lack of it – for the rest of the inhabitants of the buildings where they are housed,” the bill states.

Proposal May Alter Horizontal Property Rights

To support their contention, the PS goes further and assumes in the proposal that “housing and temporary tourist accommodations are different realities.” Margarida Osorio de Amorim believes that this argument makes everything more complicated. The lawyer explains that flats in a building are granted a residential license whose purpose is not explicit, i.e. no differentiation is made between use as a permanent residence and its use for AL. If the PS claims a distinction between the two uses, then it is not enough to require the consent of the condominium owners. One would need to change the horizontal property deeds – which divide the building into fractioned apartments and allows you to buy homes – and also require that a license be added stating that the apartment would be used in the AL services sector. This could lead to a change in the tax asset value of the apartment and, consequently, increase the Municipal Property Tax (IMI). That is, it is once again a hindrance to activity.

This is why Luís Menezes Leitão, president of the Lisbon Property Owners’ Association and also a lawyer, explained to Expresso that the PS’s proposal “calls into question the structure of the horizontal property deed” and will “transform horizontal ownership into co-ownership, because all the condominium owners will be able to intervene in each other’s homes. This is a serious breach on of the condominium owner’s rights.”

The CDS-PP, in its proposal, refers to this, saying that “any opposition of the condominium to the operation of local accommodation establishments must appear in the title constituting the horizontal property.” Asuncion Cristas’ party is not the only one not to support the PS. In fact, only the PCP agrees. None of the other parties – BE, PAN and PSD, which did not submit any bills – gave their support. Even the prime minister, António Costa, has declined to endorse the measure. But a definitive answer will only come after the five bills are discussed in the Committee on Environment, Spatial Planning, Decentralization, Local Power and Housing, over the next 60 days.

Original Story: Economia Online – Ana Baptista

Photo: Marcos Borga

Translation: Richard Turner