Urban Planning Simplex and Legal Regime of Tourist Developments –use authorization for tourism purposes.

One of the main innovations of Urban Planning Simplex (“Simplex” - Decree-Law no. 10/2024, of 8 January),  in order to speed up procedures and facilitating transactions, within the scope of the More Housing Program (“Programa Mais Habitação”), was the elimination of the use authorization (the “Use Authorization”) as an enabling title for the use of properties and to ensure their compliance with the approved projects.

 

In fact, according to the current Article 4 (5) of the legal regime on infrastructures and buildings matters (“RJUE”) "the use of buildings or their autonomous units following the execution of works subject to prior control procedures does not require any permissive act, being subject only to the provisions of Article 62-A". The procedure in question boils down to the mere deposit in the competent Municipality of (i) a term of responsibility signed by the project manager or the construction supervision director, in which they must declare that the works are concluded and that the same were executed in accordance with the project and (ii) the final blueprints (“telas finais”), but only when there have been changes to the project, that must be duly marked. The delivery of the documentation shall not be refused or denied, except if the documents referred to in paragraph 1 have not been sent, in which case the promoter shall be notified to send the missing documents.

 

Only changes regarding to the use of buildings or to their respective units, or in any information contained in a title of use that has already been issued, when the same have not been preceded by the execution of works subject to prior control procedures, are subject to a prior communication regime with a deadline, under the terms provided for in articles 62-B and 62-C of the RJUE. 

 

Although, in this matter, there has also been no express amendment to the legal Regime for the Installation, Operation And Functioning of Tourist Development ( “RJET”), the article 21 of Decree-Law no. 10/2024, of January 8, entitled "Elimination of the construction or use license authorization", expressly establishes that "all legal and regulatory references to the construction permit and to the use permit must be understood as made to the receipt of payment of the fees legally due."

 

In this regard, please note the following main rules set forth in the RJET (Articles 30 and 32):

• Once the work has been concluded, the interested party requests to the competent Municipality the Use Authorization for tourism purposes, under the terms of article 62 et seq. of the RJUE, which must be informed by the Municipality to the Turismo de Portugal, I. P. (the "Tourism").
• The deadline for deciding on the granting of an Use Authorization for tourism purposes and for the issuance of the respective permit (the “Use Permit”) is 10 days from the date of submission of the application, except when there is an inspection provided for in article 65 of the RJUE, in which case the decision period is five days after the inspection has been carried out.
• The Use Permit, unique for the entire development, must contain the elements referred to in paragraph 5 of article 77 of the RJUE and an express reference to the maximum capacity and typology of the tourist development. Also, the Use Permit must be notified to the Tourism. 
• The execution of tourist developments may be authorized in phases, in which case the Use Authorization of each phase shall be endorsed in the Use Permit, referred to in paragraph 4. To each phase of the execution of the tourist development, the provisions set forth in the section V of chapter IV of RJET apply.
• The Use Permit of the tourist developments is the valid title for the respective opening.

The verification of the compliance with the minimum requirements for the opening of the tourist development was previously carried out by the competent Municipality in the context of the Use Authorization procedure, namely in what regards to the minimum number of accommodation units required and to the minimum services necessary for the opening in case of a phased execution. Tourism was responsible for auditing the tourist developments for the purpose of verifying the respective classification requirements.

 

Now, in view of the new regime resulting from Simplex, it seems clear to us that in a tourist development whose construction has been subject to prior control procedures, it will be sufficient to submit the documents listed in Article 62-A(a) and (b), to be able to transfer the respective tourist accommodation units, without prejudice to the other legally required documents. The use of the tourism development is dependent on the compliance with the procedure provided for in article 62-A of the RJUE, on the payment of the fees due, on the registration of the development by the promoter in the National Registry of Tourist Developments ("RNET") and on the communication from the interested party to the Municipality (with the knowledge of Tourism) of its decision to open to the general public, under the terms of article 31-A of RJET. Tourism will carry out the necessary classification auditing provided for in article 36 of the RJET. 

 

The opening title becomes, therefore, in our opinion, the documentation proving the communications made to the Municipality under the legal terms, and the payment of the fees due.

 

However, there are still doubts in the articulation of the regimes, which cannot fail to be clarified by the legislator, namely, will Tourism proceed with the verification of all the requirements of the tourist developments, such as the minimum number of accommodation units, the control of the phases, and will it then disqualify such developments that have recently opened? 

 

According to the Announcement of the Council of Ministers of March 21, 2024, the publication of a decree-law that makes corrections and clarifications to the RJUE is imminent. We hope that these are some of the issues subject to clarification.

 

Filipa Névoa | fne@servulo.com 

Joana Pinto Monteiro | jpm@servulo.com