Revista Red

Revista Red

2017

ISSN 2182-9845
2017 N.º 3
Editorial
Maria Olinda Garcia

Importância e complexidade do arrendamento urbano: a incerteza de uma casa portuguesa?

  

O convite da Doutora Maria Raquel Guimarães para participar neste número da RED sobre arrendamento urbano e para escrever o seu editorial foi um desafio irrecusável. O prestígio que esta jovem revista já alcançou deve-se, em grande medida, à dinâmica e à inteligente visão de futuro da sua diretora. De facto, a interdisciplinaridade e o inerente alargamento de horizontes temáticos, tanto a nível nacional como internacional, são incontornáveis no futuro da investigação e do ensino do direito, bem como no rejuvenescimento da dogmática jurídica.

Este é um número monográfico dedicado, centralmente, ao arrendamento urbano, matéria cujo regime se não confina à civilística contratual, pois ai se identificam marcadas opções de política legislativa (igualmente identificáveis em ordenamentos jurídicos estrangeiros), que se materializam também em específicas regras processuais, fiscais ou administrativas.

2017 N.º 3
The activity of operating a temporary accommodation establishment
Aristides Rodrigues de Almeida
Temporary accommodation; Requirements; Operating conditions; Owner of the establishment; License of use; horizontal property; Use for housing.

The temporary accommodation is a multifaceted reality that has acquired in recent years a significant dimension in the use of real estate for temporary accommodation of tourists outside the traditional hotel circuit, which inevitably generated social and legal controversy. The national legislature recognized and validated the occurrence to ensure tax revenues. But by creating the legal regime it intentionally lacked to regulate essential aspects of this activity, when exercised in horizontally owned buildings. 

2017 N.º 3
Swedish legislation of Residential Tenancies: An Interaction between Collective Bargaining and Mandatory Regulation
Haymanot Baheru
Swedish landlord-tenant legislation; collective bargaining system; integrated market; Rent Tribunals; rent control; tenure security.

The Swedish landlord and tenant law legislation is an interaction between the collective bargaining system and the mandatory provisions in the Land Code of 1970. Almost the entire rental housing stock is included in the collective bargaining system. The most powerful player in the collective bargaining system is the Tenants’ Union. Its role is historically rooted in its close connection to the Social Democratic Party. The provisions in the Land Code are mandatory on the tenant’s behalf. Additionally, the regional Rent Tribunals play an important role in guarding the rights of the tenants.

2017 N.º 3
Italian residential tenancies: history and perspectives
Ranieri Bianchi
tenancy law; contract law; housing; rental market; housing market; tenures; stability; affordability.

Since the beginning of the 20th century, Italian residential tenancies have been regulated through various special statutes, with the common purpose of protecting tenants with mandatory rules aimed at stability and affordability. In this context the mainly dispositive rules regarding tenancies in the Italian Civil Codes have always had a residual application. Since the last general reform in 1998, the residential sector has experienced a “controlled liberalization” which had to cope with the significant changes in the housing market in the years prior to and after the beginning of the economic crisis. 

2017 N.º 3
Short-term rental agreements with tourists: a so-called local accommodation contract
Maria Olinda Garcia
rental agreements with tourists; short-term rentals; local accommodation; connected contracts; housing; holiday accommodation.

Private tourist accommodation is currently facing new legal challenges. This market sector is rapidly growing, mostly due to electronic platforms contracting, and creating various problems, such as the reduction of housing stock to rent to families and the nuisance caused by tourists in blocks of flats (condominiums). In this context, different sorts of agreements between hosts and tourists must be distinguished in order to show that different contracts should not be treated the same way. This article analyses these different agreements and focus on the legal regime of short-term rental contract with tourists.

2017 N.º 3
Spanish law of residential leases: Historical developments and current regulation and trends
Rosa Maria Garcia Teruel
tenancy law; housing; rental market; tenures; stability; affordability; flexibility.

The housing rental market in Spain has been regulated for decades through special rules on urban leases. This special regulation is aimed to protect tenants, who are considered the weak part of the contract, while the general provisions for leases in the Spanish Civil Code are only subsidiarily applicable.  The purpose of this article is to provide a broad view of the Spanish legal framework for tenancies, taking into account the historical development of special rules on urban leases, including rights and obligation of the parties and mandatory provisions for this kind of contract. Since 2013, the liberalization of this regime is jeopardizing tenants’ stability, affordability and flexibility, which had lead to a proposal for new rules in Catalonia.

2017 N.º 3
Protection for tenants in German and Spanish private law: Two clearly opposed patterns
Beate Gsell / Markus Artz / Esther Arroyo Amayuelas
lease; party autonomy; permanent contracts; temporary contracts; rent; “sales breaks hire”.

This contribution compares the German and the Spanish legislation on lease; it particularly deals with questions such as grounds for termination of the contract and freedom to negotiate the rent. The study shows two clearly opposite models and illustrates the road that still should be traversed in Spain to better protect the tenant.

2017 N.º 3
Till death do us part? The assign of the tenancy upon the residential tenant’s death. Some reflections on the Portuguese case law
Maria Raquel Guimarães
residential tenancy; tenant death; NRAU; Portuguese law; art. 1106.º; art. 57.

The questions raised by the death of the tenant and the possibility of assigning the tenancy to those who were close to him are frequently discussed by the Portuguese higher courts. Often the cases that are judged today in our courts still refer to contracts celebrated in the first half of the 20th century, as a result of the death no longer of the initial tenant, nor of his spouse, nor of his children, but of his grandchildren... The successive interventions of the legislator over the years have affected the possibility of perpetuating the contract by several generations of tenants, establishing different rules depending on the year the contract was made.

2017 N.º 3
Rental Housing: the current legal framework in England
Caroline Hunter / Jed Meers
Residential tenancies; England; precarity.

Residential tenancies law in England are complex because of an over-lay of (changing) legislation on the top of common law principles, and sometimes different law for private and social tenants. In this article we use a framework of legal determinants of housing precarity to analyse this law. There are five determinants to our analysis: tenure/time; control; cost; conditions (habitability); and immigration status. The difficulties occupiers and landlords face in untangling the patchwork of protections unites these different determinants. Further we demonstrate that the position of tenants has become in some ways more precarious in the last 30 years – in terms of the ease of eviction and, for private tenants, for rents.

2017 N.º 3
When the lease position is extended to the other spouse under the marital property regime — a critical reflection on the article 1068 of the Portuguese Civil Code
Rute Teixeira Pedro
Lease; Marriage; Marital Property Regime; Family Household; Co-ownership of a contractual position; Family Wealth.

Our paper focus on the legal framework stated in the article 1068 of the Portuguese Civil Code, as it was amended by the Law no. 6/2006, dated to 27 February. The mentioned provision remains unchanged since then, as it has not been amended by the legal reform produced by Law no. 31/2012, dated to August 14. Considering that it has meant a change (at least in part) in relation to the legal solution previously in force, it is important to define how the economic regime of the marriage entails the communicability of the lessee's contractual position.

2017 N.º 3
Banckruptcy and Lease under Brazilian Banckruptcy Law
Adriana Valéria Pugliesi
Banckruptcy; Lease; Brazilian Banckrupcy Law; Preservation of the company.

Bankruptcy instituted by Federal Law n. 11101/05 has fully renovated purposes in the current Brazilian bankruptcy law. Next to the credit protection — vector that always guided a Bankruptcy procedure — is also the principle of preservation of the company as one of its pillars. The preservation of the company will be achieved under the implementation of legal mechanisms aimed to maintain the economic activity pre-existing and by transferring it to another economic agent who is able to exploit it efficienttly. The creditor’s claims, on the other hand, will be preserved and potentially will be better served because it is assumed that the disposal of a business in progress will provide best results. The section 114 of Federal Law 11101/05 provides permission to lease the assets of the estate and this is an important mechanism of company preservation. 

2017 N.º 3
Brief considerations on the affordability in the German residential tenancy market and alternatives in the sharing economy context
Marta Santos Silva
Housing; Rent; Rent Regulation; Tenancy law; Tenant; Landlord.

Renting prevails in the German rental market. This situation is different than that of Portugal, where ownership prevails, even though in Germany ownership is recognised as an asset as far as retirement planning and long-term investment are concerned. Another trend can be found in addition to the prevalence of renting over ownership. An increasing number of households in densely inhabited German cities have been suffering with the sustained rent increase following the growth of the local accommodation sector within the so-called “sharing economy”. This paper presents an analysis of how the German authorities have ruled rents and local accommodation in a way of making a sustainable development of the private residential tenancy market possible.   

2017 N.º 3
The innovation of the French tenancy law: the ALUR Act
Asimina Tsalpatourou
tenancy law; housing market; ALUR Act; renovation; rent control; guarantees.

The French tenancy law is based on the Act 89-462 of the 6th July 1989 for the improvement of tenancy relations. Overall this Act can be considered as a well-balanced act that protects the interests of both tenants and landlords. However, tenants are still the weak party of tenancy contracts, even if they are protected at every step of their relations with landlords. Therefore the 1989 Act needed to be reviewed in order to take into consideration the evolution of the legal framework and of the housing market in France and, above all, the rights of tenants.

2017 N.º 3
Maltese law of letting and hiring: Lessons from the past and solutions for the future
Kurt Xerri
Housing; Rent; Rent Regulation; Tenancy law; Tenant; Landlord.

The Maltese government is currently seeking to address the question of how to regulate its private rented sector. A wave of foreign employees, driven by the remarkable economic growth of the island, has produced a dramatic rise in rental prices, thereby constraining a segment of the population to live in challenging housing conditions. Although a degree of regulation appears to be necessary in order to stabilise the increase in rents, proposals for government intervention in the sector are treated with significant scepticism as not only have overly-restrictive mechanisms led to the paralysis of the market twice in the course of the country’s recent history, but due to governmental inaction, an appreciable number of rental contracts remain to this day subject to a disproportionate, and in some cases even unjustified, controlling method.