Portugal
Answer ... Ownership (or co-ownership) comprises the right of use, enjoyment and disposal of property.
The Civil Code provides for other rights in rem over real estate:
- Surface rights provide for the use, enjoyment and administration for a term or in perpetuity, allowing for construction or plantations.
- Usufruct rights provide for the right to build and maintain a building on land that is partially or wholly owned by third parties, and can be temporary or set in perpetuity.
- Real rights of use in rem allow third parties to harvest fruit for a predetermined period.
- Permanent housing rights in rem grant an individual the use of a third party’s property for the duration of the former’s lifetime. Real timeshare rights in rem are allowed for tourism units.
Portugal
Answer ... Residential properties in Portugal are typically under individual ownership, serving as either a primary residence or a second home.
On the other hand, larger commercial properties are frequently owned by companies, serving as investment assets or business facilities. In the realm of commercial real estate development, it is customary for companies to establish special purpose vehicles for each project.
Additionally, collective investment schemes such as real estate funds are seeing an increase in both their number and the volume of assets managed.
Fiduciary structures such as trusts are not recognised under Portuguese law. However, the concept of fiduciary ownership is accepted within the Madeira Free Trade Zone.
Portugal
Answer ... In Portugal, real estate ownership is generally unrestricted.
However, special restrictions come into play in specific cases, particularly in non-constructible areas. These restrictions aim to safeguard vital sectors such as agriculture, the coastline, forests and other natural assets from potentially detrimental development activities.
Portugal
Answer ... In Portugal, the general rule is that real estate ownership encompasses not only the land itself, but also the airspace above its surface and the subsurface rights, along with everything contained within these boundaries.
However, it is possible to enter into agreements to establish a surface right in rem.
Portugal
Answer ... In Portugal, the most effective security interest for lenders is often a guarantee in rem, typically in the form of a mortgage. A mortgage has certain advantages, including the fact that it attaches to the property itself. This means that if the property is sold without prior cancellation of the mortgage, the mortgage continues to encumber the property and remains valid.
In the event of a court-ordered sale of the property, a mortgage grants the secured lender the right to collect its claim, which is typically related to or secured by the property. This right to collect proceeds from the sale ensures that the lender has a strong position in recovering its debt, provided that there are no other superior or prior guarantees in place.
Under specific circumstances, it is possible to register a promissory sale and purchase agreement in Portugal with erga omnes effect, meaning that it has legal force and effect against all parties, including third parties which were not involved in the original agreement.
In accordance with the principle of priority of registration in Portuguese real estate law, when there are multiple conflicting rights entries registered, the oldest registered right takes precedence. Mortgages that are registered later in time are considered subordinate to those that were registered earlier.
Other guarantees and securities include:
- assignment of income;
- pledge of shares/quotas;
- assignment of claims as security;
- pledge of bank accounts; and
- sureties.
Operational, collateralisation and financial covenants may also be agreed upon, but do not qualify as guarantees in rem.