Owners of Portuguese property that is located close to rivers or the sea, and who want to sell, transfer now have until July 2014 to prove the property was in private hands in 1864.
The July deadline extension is the only good news as owners of buildings located in coastal and riverside areas will continue to be required to provide proof of their ownership in court, and that the properties in question were already privately owned before 1864, otherwise they risk losing their rights.
At issue is the 2005 law requiring the owners of property located within fifty metres of the seaside or 30 metres of a river (defined as having a 10 metre width or more) to go to court and prove that the property not only belongs to them, but that the property already was in private use before 1864.
This 2005 law stipulated that the evidence should be given by January 1st, 2014, but given the difficulties that this entailed the government reached a cross-party agreement for a less than generous extension of six months.
By the end of last year there was no party agreement on the proposed amendments, however the deadline was extended to July 1st.
Olinda Magellan from the law from JPAguiar Branco commented, "the owners have to abide by the law that exists and therefore provide proof of ownership in court."
The question of legitimate ownership will arise, especially in cases where there is a proposed property transaction, whether a sale, a gift or an inheritance. In practice, in the absence of proof the owner can not dispose freely of his property.
Until the new 2005 legislation registration and compliance matters were simply handled by a submission to the Comissão do Domínio Público Marítimo.
The 2005 legislation stipulates that the owners now have to go to court and through a legal action achieve legal recognition of their rights. For this they have to submit documentary evidence - testimonial evidence is already impossible given the passage of time. Some owners have produced old paintings or photographs. When this is not possible and no real proof exists, the legal case becomes a real headache for homeowners.
The 2005 law caused obvious difficulties for many and the socialists presented a legislative amendment to extend the compliance period for two years. The ruling party proposed deleting the deadline, in which case proof would only be required in situations where there was a proposed change of ownership by sale or inheritance.
Without reaching a consensus last year, and given the approaching deadline of January 1st, parliament opted for an extension until July 1st 2014, also pledging to review the law by that date, by "defining the requirements and deadlines for obtaining recognition of property," not by scrapping this outdated and punitive law that will serve to immobilise coastal and riverside property transactions and will cause expenses and distress to thousands of owners.
MP Miguel Freitas commented that if the proposed amendment "is not filed within the reasonable time, then we will renew the proposal to extend the term for two years."
By playing with deadlines the government and opposition is not helping those property owners who are unable to prove their properties were privately owned 150 years ago. Such owners are unlikely to find willing buyers if their property remains unregistered and may not be able even to gift their property without a court application and the payment associated costs.
_____
Sent in by a reader:
The European Parliament recommendation is that impacted property owners file a compliant with the European Commission for a comprehensive study by the EU.
This topic has been raised by an MEP:
"It has been brought to my attention that the Portuguese Government plans retroactively to repossess private properties situated along its coastline and return ownership to the state.
The applicable ruling, under Law No 54/2005, dates back to 1864 and includes all properties on land located within 50 metres from the sea or within 30 metres of a riverbank. The owners of property within these ‘Domínio Público Hídrico’ areas must now prove, before 1 January 2014(this has now been delayed for 1 July 2004) , that their property has been in private ownership for at least 150 years.
Property owners, which include a number of my constituents, say that it is extremely difficult to demonstrate ownership of the land in question as records dating back over a century are scarce. I would therefore like to ask the Commission whether it is aware of the enforcement of this law by the Portuguese Government and whether it feels that this law is compatible with the right to private property, as laid down in Article 17 of the EU Charter of Fundamental Rights?
In addition, and given that the Portuguese government’s actions appear to be in contravention of EC laws governing legal certainty and the prohibition of retroactive laws, I would ask the Commission what action it could take to prevent the enforcement of this law which could adversely affect thousands of EU citizens?"
And the EU responded:
"As a matter of principle, the Commission's powers regarding acts and omissions by Member States are limited to overseeing the application of Union law, under the control of the Court of Justice. Regarding more particularly the fundamental rights issues raised, the Commission recalls that, according to Article 51 (1) of the Charter of Fundamental Rights, the provisions of the Charter are addressed to the Member States only when they are implementing Union law.
On the basis of the information provided by the Honourable Member, it does not appear that the Member State concerned did act in the course of implementation of Union law. In particular, according to Article 345 of the Treaty on the Functioning of the European Union, the provisions of the Treaty shall in no way prejudice the rules in Member States governing the system of property ownership.
In the matter referred to by the Honourable Member, it would thus appear that it is for the concerned Member State to ensure that its obligations regarding fundamental rights — as resulting from international agreements and from their internal legislation — are respected. However, in order to allow for a thorough assessment of the details of the case, the property owners concerned might consider filing a complaint to the European Commission services."
Please go to Portugal 54/2005 or lkook up 'Portugal Hydric' on Facebook to express your support in a complaint petition with the European Commission.
