It was recently promulgated by the President of the Republic the legal regime for the regularization of the “improvement floors” existing in São Miguel Island. Here are the main lines of this law that will allow individuals, be they the owners of the floors or the owners of improvements, finally the division of property, necessarily unifying it in one holder.
Improvement floor for permanent housing.
It should be noted that the new law applies only in cases where improvements are intended for permanent housing. In fact, 'Improvement floors' are defined as properties whose land use has been assigned by the owner by contract, through monetary remuneration, authorizing the user to build improvements (of which he becomes 'owner'). ), intended for permanent housing. That is, for the purposes of the law, "improvement" will be the whole building, including its annexes, backyards and / or public places, which, on the date of entry into force of the law, is intended for permanent housing of the owners of the improvements and that has been built on someone else's soil, who will own the ground.
Temporary potestative right of acquisition
With this scope of action, the law creates a temporary potestative right to acquire ownership of the soil (ground) or the buildings existing therein (improvements). In other words, the new legislation allows the owner of the floor to acquire ownership of the improvements over a period of time without opposing it. And vice versa, that is, through this law, the owner of improvements can also oblige the owner of the floor to give him ownership of the floor, without being able to contest it. In either case, the aim is for the property to be unified, with only one owner, both of the ground and of the buildings on the ground.
Who acquires the potestative right of acquisition
A key issue in the regime is the determination, in particular, of the owner of the right to acquire full ownership, whether the owner of the floor, whether the owner of the improvements. The law tells us that it will be the owner of the component (floor or upgrades) that has the highest asset value. And how is this value determined? In this case, the law has the criteria set out in Title III of the Expropriation Code applied and the amount thus determined will correspond to the compensation that the acquirer must give to the other party, that is, to the one who is obliged to transmit the owner (of the land) or improvement.
The law states that the aforementioned potestative right exists (and may be exercised) within 10 years of the publication of the law. However, this period is subject to a suspensive condition, namely, approval by the Municipalities, of the urban regularization plans, instruments that are mandatory and must be implemented within 2 years. In short, we have a deadline of up to 12 years, on the assumption that local authorities will, within the deadline set for them, legalize the various clusters of improvement floors.
How is the right exercised?
It is important to note that the exercise of the potestative right of acquisition can only be done by judicial means, although with the possibility of resorting to an arbitral tribunal, which will hardly apply. That is, for the owner of the improvements to acquire ownership of the ground - and vice versa - he will have to file a petition in court to see his right recognized (first, due to an assessment to be made under the Code of Expropriations), and to order the other party to transfer ownership to it, which will thus be unified.
It should be noted that the Azores Regional Government will create incentives to support the acquisition of land ownership, 30 days after the law enters into force. That is, until 60 days after the publication of the law in Diário da República, the Government of the Azores will create this incentive support intended only for owners of improvements.
Plans of detail and extraordinary regularization
According to the law already promulgated, the city councils must elaborate detailed plans within a maximum of two years or, alternatively, in cases where this is not possible, resort to the legal mechanisms for the regularization of illegal works or extraordinary regularization. It should be noted that the regularization operations are exempt from concessions, compensations, fees and other charges and that the Azores Regional Government bears the costs of preparing the detailed plan projects.