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June 18, 2021 - Comments Off on Injunction Proceedings in Leases

Injunction Proceedings in Leases

The Government approved the Decree-Law nº 34/2021 of 14th May, which establishes the regime for injunction proceedings in matters of lease (henceforth referred to as "IMA") foreseen regulates the Service for Injunctions in Matters of Lease (henceforth referred to as "SIMA"), before which those proceedings should be filed.

IMA is the remedy intended to confer enforceability to the request that the tenant can file against the landlord for the latter to:
a) Pay the outstanding compensation due to the works carried out by the tenant in lieu of the landlord and which the legal responsibility of the latter;
b) Put an end to activities which create a risk to the tenant’s health, as long as the same are documented by a report issued by the police authorities (or a similar authority) or by the relevant municipality;
c) Correct defects to the leased property which create a serious risk to the health or safety of the people or belongings, as documented by the report mentioned in subparagraph b) above;
d) Corrected issues that prevent the proper use of the leased property, as documented by the report mentioned in subparagraph b) above.

If the application is submitted through a lawyer, then it must be electronically submitted before SIMA. In case it is not submitted through a lawyer, it may be delivered in person at SIMA, or by registered mail, fax or electronic means.

Once the application is received, SIMA will immediately notify the landlord to, within 15 days and by registered letter with acknowledgment of receipt, show that he/she has complied with the tenant’s application and attach proof of payment of the court fee or to challenge the claim.
Following service of the application, if the defendant does not file a defence, SIMA shall make the tenant’s application enforceable. If a defence is filed, SIMA will forward the same to the relevant court, which will decide on the merits of the same. There can be hearing/s and a trial before the court issues its judgment. At this stage, it is mandatory for the parties to be represented through lawyers. The acts to be carried out by the judge are deemed urgent, meaning that the proceedings are not stayed during the judicial recess.

When the application is made enforceable, the tenant can then enforce said injunction in court and the landlord cannot file a defence to the same.
If the object of the injunction is the execution of works in the property or in common parts of the building, the tenant is authorized to carry them out once the application has been made enforceable.

Finally, the injunction proceedings are terminated with the tenant acknowledging that the injunction has been complied with, with the tenant withdrawing the proceedings by the tenant (which the tenant can only do before the landlord files a defence) or with the death of either the tenant or the landlord.

June 2021
Edge International Lawyers