Framework

Decree-Law no. 76/2024, de 23 de outubro (“DL 76/2024”) introduces significant changes to the Local Accommodation Legal Framework, contained in Decree-Law no. 128/2014, of August 29, as well as repealing some provisions introduced in 2023 by the Mais Habitação program regarding this economic activity.

The government’s legislative initiative aims to create conditions for the consolidation of local accommodation activity, reinforcing guarantees of stability and legal certainty while reconciling concerns about the economic and urban impacts that this sector of activity has in Portugal. These changes will take effect on November 1, 2024.

Changes to the Mais Habitação program

• Under Law no. 56/2023, of October 6, which approved the Mais Habitação program, the suspension of the issuance of new registrations of local accommodation establishments in some of its modalities was determined (article 19), with the exception of the specific situation in some territories in the interior of mainland Portugal, a suspension that is now revoked;
• Articles 18, 20 and 21 of the aforementioned Law 56/2023 are also repealed, thus eliminating (i) the provision whereby the duration of the registration of local accommodation establishments would be granted for renewable periods of 5 years, (ii) the obligation to re-examine in 2030 all existing registrations on the date of publication of the Mais Habitação program (2023) and (iii) the ex-officio expiry of inactive registrations, which was determined whenever proof of the maintenance of the activity was not provided.

Changes to the Local Accommodation Regime

• Os municípios poderão aprovar um regulamento administrativo especificamente direcionado para a atividade de alojamento local no seu território, impondo-se aos municípios que decidam se o vão fazer sempre que à data de entrada deste diploma existam (ou venham a existir) mais de 1000 estabelecimentos de alojamento local registados;
• Municipalities will be able to approve an administrative regulation specifically aimed at local accommodation activity in their territory, requiring municipalities to decide whether to do so whenever there are (or will be) more than 1,000 registered local accommodation establishments on the date of entry of this diploma;
• The figure of the local accommodation ombudsman is created, which may be provided for in the respective municipal regulations, and who will be responsible, in each municipality, for (i) supporting the respective municipality in managing disputes between residents, owners of local accommodation establishments and owners or interested third parties, (ii) assessing complaints submitted to it, (iii) issuing recommendations and (iv) approving and implementing good practice guides on the operation of that activity;
• The obligation to obtain a prior decision from the condominium to carry out local accommodation activities was also repealed whenever the establishment is registered in an autonomous fraction intended for habitation in the respective horizontal property deed, with this obligation remaining only for hostels located in an autonomous fraction;
• In addition to the grounds already existing in the Local Accommodation Regime, Decree-Law 76/2024 also adds the power of the mayor to oppose the communication of registration of new establishments (i) in the event of violation of restrictions inherent to containment zones and sustainable growth zones or lack of authorization for appropriate use of the property and (ii) non-compliance with applicable legislation. This opposition, which previously had to be made within 10 days, can now be made up to 60 days from the submission of the registration application, or even 90 days if the local accommodation is located within a containment area;
• A relevant novelty introduced by Decree-Law 76/2024 is the introduction of the right of appeal by the interested party against the opposition decision, determining that an inspection of the establishment be carried out by the municipal services (at the interested party’s expense);
• One of the most significant changes to the Local Accommodation Regime is the repeal of the limitations on the transferability of registrations, without prejudice to the possibility of the municipality being able to introduce limits on new registration numbers in containment zones;
• The grounds for cancellation of local accommodation registrations include (i) the absence of valid compulsory insurance (or lack of proof), (ii) the repeated and proven practice of acts that disturb the normal use of the urban building and (iii) in containment areas, when it is found that urban rental contracts for permanent housing have been signed on the site where the local accommodation establishment was set up in the two years prior to the submission of the request for prior communication with a deadline;
• Decree-Law 76/2024 reduces the majority required for opposition by the condominium to the exercise of local accommodation activity from 2/3 to 1/2 of the building’s permillage, imposing that such opposition must be based on (i) the repeated and proven practice of acts that disturb the normal use of the building or (ii) acts that cause nuisance and affect the rest of the owners, a decision that must be sent to the mayor of the municipality with territorial jurisdiction for a decision or promotion of a possible agreement;
• The maximum capacity of local accommodation establishments has also been altered, with the exception of “rooms” and “hostels”, reducing it to a maximum of 9 rooms and 27 users (previously 30 users), although, if the establishments are in a position to do so, the installation of convertible and/or supplementary beds that together do not exceed 50% of the number of existing fixed beds is also permitted;
• A new obligation is also included for holders of local accommodation to require them to take out insurance to cover the risks provided for in the Local Accommodation Regime and in Ordinance no. 248/2021, of June 29, which regulates compulsory insurance contracts for non-contractual civil liability in this area, and proof of such contracting may be required, with non-compliance with this obligation being one of the grounds for cancellation of registration;
• The possibility of setting up commercial and service establishments in buildings dating from before 1951 has also been extended, provided that the other legal requirements are met;
• DL 76/2024 also imposes that the definition in the municipal regulation of areas of containment and sustainable growth must be duly substantiated by specific studies (and re-evaluated every 3 years), and it is possible at the regulatory level to establish limitations on the number of new registrations (e.g. (i) in cases of buildings or fractions or parts of buildings that have been leased or (ii) bearing in mind the proportion in relation to the number of housing units available) and the transfer of the same in the “house” and “apartment” modalities (without affecting the legal inheritance rules);
• A very important innovation, aimed at ensuring the effectiveness of the new municipal regulations, is the possibility for municipalities, by reasoned decision of the municipal assembly, on a proposal from the municipal council, to suspend the authorization of new registrations in specifically limited areas for a period of one year until the regulations come into force.;
• Finally, it should be emphasized that the supervision of the correct application of the Local Accommodation Regime will henceforth be entrusted solely to the municipalities and, with specific regard to economic activity, to ASAE, eliminating the powers that previously existed in favor of the parish councils.

All these measures come into force on November 1, 2024.

Written by Nuno Madeira Rodrigues, coordinator of the Real Estate Law Department.