Key Benefits:
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PROPOSED LAW NO. 103 /X
Exhibition of reasons
The importance of public real estate justifies the definition of a general regime and
common of the public domains of the State, autonomous regions and local authorities,
to properly ensure its integrity and to enable its profitability.
At present, such a general and common regime does not result directly from the law, as a result
fundamentally from median sources of law, thus becoming prepositionable to this
area of undeniable importance, in such a way as to protect and profitably enable the heritage resources of the
Country.
The legal regime for the management of public real estate has been, since a long time,
fragmented and dispersed, which hinders their interpretation and application and imposes deep
review, to which, in relation to the public domain, it is authorized by this Law. Thus, visa-
if systematizing the legal regime of the management of public real estate, what
covers the two major plans of the private domain and the public domain, being that,
as for this one, it is necessary to create the basilar rules to which the goods are subject
dominials.
The general and common regulatory provisions of the management of real estate of the fields
public of public legal persons of territorial basis shall cover at least
under the terms of this law, the acquisition and termination of the status of dominiality, the principles
general inalienability, printability and impenhorability, the use of the
real estate by the Administration, through dominial booking, domial mutations and cedances
of use, the fruition of the same by private individuals, through ordinary common use and use
common extraordinary and of private uses, the transfer, for the latter,
through the granting of exploration for predetermined period and upon payment
of fees, the powers of management and exploitation of real estate, as well as the elaboration, the
organization and the periodic updating of the inventory of immovable property by the entities that the
administer.
The self-governing bodies of the Autonomous Regions, the Association, should be heard
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National of Portuguese Municipalities and the National Association of Freguestics.
Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the
Assembly of the Republic the following proposal for a law:
Article 1.
Subject
Is the Government authorized to establish the legal regime for the real estate of the fields
public from the state, autonomous regions and local authorities.
Article 2.
Sense and extension
1-A The legislative authorization conferred in the previous article comprises the general provisions
and common of the management of the real estate of the public domains of the State, of the regions
autonomous and local authorities.
2-The legal regime that the Government is authorized to establish in the terms provided for in the
previous article defines:
a) The acquisition of the status of dominiality by means of legal classification;
b) The assignment of the title of real estate of the real estate of the public domain to the State,
to the autonomous regions and local authorities and the respective exercise through the
powers of use, administration, guardian, defence and disposition;
c) The allocation, by the respective holder, of the immovable to the corresponding public utilities
to the legal classification whenever the public interest underlying the dominiality does not
decorates directly and immediately from the nature of the immovable;
d) The cessation of the status of dominiality through misallocation of real estate
integrated in the public domain;
e) Inalienability, printability and impending impenhorability, as principles
general;
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f) The exercise of the duty of self-tutelage by the Administration in the face of private individuals who
adopt abusive, untitled behaviour or, in general, which slug the interest
public to be satisfied by the immovable and repose the situation in the previous state;
g) The use by the Administration of real estate, through dominial reservation, by
grounds of public interest, subjective dominial mutations and cedances of
use, allowing the latter situation to be used by public legal persons
distinct from the holders of the real estate;
h) The fruition of real estate by private individuals, through ordinary common use
biased free of charge, save in cases where the harnessing is divisible and
provide special advantage, and of extraordinary common use and uses
deprivative, conferred by license or concession;
i) The subjection of the deprivative use of goods from the public domain, with powers
exclusive of fruition, during certain periods and upon payment of
fees;
j) The impossibility of extending the time limit of the granting of private use,
except stipulation to the contrary duly substantiated;
l) The need for the granting entity of private use to authorize
expressly the realization of acts of transmission between live and real warranty, of
arrest, of penhora or any similar providence on the resulting right of the
concession, under penalty of their nullity;
m) The duty of the concessionaire to repose the goods of the public domain dealerships in the
situation in which these were met at the date of the start of the concession and the possibility
of the concessionaire losing in favour of the conceding the goods whose disassembly or
separation implies a disproportionate deterioration of the vacated immovable;
n) The right of the concessionaire of the private use to an indemnity in the event of
extinction of the concession before the course of the period by fact that it is not
attributable;
o) The transfer to private individuals, through concession of exploitation, by period
determined and upon payment of fees, the powers of management and exploitation
of the real estate, in particular those of ordinary ordinary and granting permission of
deprivative use;
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p) The impossibility of extension of the term of the concession of exploitation, unless
stipulation to the contrary duly substantiated;
q) The elaboration, organization and periodic updating of inventory of goods
real estate in the public domain by the entities administering them.
Article 3.
Duration
The authorisation granted by this Law shall be for the duration of 90 days.
Seen and approved in Council of Ministers of October 12, 2006.
The Prime Minister
The Minister of the Presidency
The Minister of Parliamentary Affairs
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This decree-law sets out, for the first time, the general and common provisions applicable to the
real estate in the public areas of the State, autonomous regions and authorities
locations. At this headquarters, it assumes relevance to the possibility of the acquisition of the status of the
dominiality to be able to result from legal classification and allocation subsuntive to the utilities
corresponding public. On the other hand, the circumstance of the loss of the status of the
dominiality if it can check for misallocation of the utilities that justified the subjection
of the immovable to such status. The legal regime of the real estate of the public domains of the
State, autonomous regions and local authorities are still resorted to by the principles of
inalienability, printability and impenhorability and the possibility of the goods
in cause to be used, by the Administration, through reserves and dominial mutations and
of cedances of use and, by private individuals, in particular through grants of
exploration.
The present decree-law further contemplates the principles that should regulate the dominion management and
that are common to administrative activity.
For its part, the complete inventorisation of the real estate of the public domain of the State,
of the autonomous regions and local authorities is a pressing need for the
good management of public real estate, which is why, finally, one establishes a
scheduling program calendarized work of the work required for the elaboration and
update of the inventory, the default of which is liable to financial liability
aggravated.
In short, the systematization ora introduced allows to discipline, properly, a use
more efficient of the dominial resources, providing rationality and profitability in the
heritage operations and, consequently, a strengthening of financial effectiveness and thoroughness.
Thus:
In the use of the legislative authorization granted by the Article No. of the Law n. .../..., de ..., and
under the terms of the ( b) of Article 198 (1) of the Constitution, the Government decrees the
next:
Chapter I
General provisions
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Article 1.
Scope
The present decree-law sets out the general and common provisions on the management of goods
real estate in the public areas of the State, autonomous regions and local authorities,
as well as the reporting duties for inventory effects.
Article 2.
General principles
The entities covered by this decree-law shall observe the general principles of
administrative activity, specifically the principles of legality, of the pursuit of the
public interest in respect for the rights and legally protected interests of the
private individuals, of equality, proportionality, justice, impartiality and good faith.
Article 3.
Classification
The real estate of the public domain is those classified by the Constitution or by law,
individually or upon identification by types.
Article 4.
Title
The entitlements of the real estate of the public domain belongs to the State, the autonomous regions and
to local authorities, and covers powers of use, administration, tutelage, defence and provision,
under the terms of this decree-law and other applicable legislation.
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Article 5.
Allocation
1. Whenever the public interest underlies the status of the dominiality of an immovable
it does not decorates directly and immediately from its nature, it is incumbent upon the respective holder
affect it to the public utilities corresponding to the legal classification.
2. The effectiveness of the allocation to which the final part of the preceding paragraph is concerned is dependent
of the effective verification of the utilities that justified the subjection of the good to the status of the
dominiality.
3. When the real estate of the public domain is likely to provide several
utilities, these are determined and ordered by act or administrative contract, of
agreement with their nature and the public interests co-involved.
Article 6.
Misallocation
Where they are disaffected from the utilities justifying the subjection to the scheme of the
dominiality, real estate cease to integrate the public domain, entering the domain
private of the State, autonomous regions or local authorities.
Article 7.
Inalienability
The real estate of the public domain is out of the legal trade, and may not be the subject of
private rights, or transmission, by private law instruments.
Article 8.
Printability
The real estate of the public domain is not susceptible to acquisition by usucapion.
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Article 9.
Impenhorability
The real estate of the public domain is absolutely impawable.
Article 10.
Self-tutelage
The Administration has an obligation to order private individuals to cease the adoption of
abusive, untitled behaviour or, in general, which slug out the public interest to
indulge in real estate and repose of the situation in the previous state, and must impose
coercively to its decision, pursuant to the Code of Administrative Procedure and the
special applicable legislation.
Article 11.
Dominial reservations
1. The real estate holder of the common use public domain may reserve for themselves the use
deprivation of all or part of the same when grounds of public interest the
justifying, in particular, the purpose of study, research or exploitation, during a
given time frame.
2. The duration of the reservation is limited to the time required for the fulfilment of the purposes in
virtue of which it was constituted.
3. The reservation prevails over any right to use the real estate prior to its
constitution.
Article 12.
Cedances of use
1. The real estate of the public domain may be ceded to precarious title for use by
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other public entities.
2. To the cases referred to in the preceding paragraph applies, with due adaptations, the scheme
of the assignment to the precarious title, and, specifically, to the entities administering the
real estate:
a) Formalize the delivery of real estate through self-lending and acceptance;
b) Scrutinizing the fulfilment of the end-justification of the yielding;
c) Determine the return of the real estate to the ceding entity.
Article 13.
Subjective dominial mutations
The entitlements of the real estate of the public domain may be transferred, by law, act or contract
administrative, for the title of another territorial public legal person, in order to
real estate being allocated for integrated purposes in its assignments, in the terms provided for in the
Code of Expropriations.
Article 14.
Ordinary common use
1. Goods of the public domain can be fructed by all upon conditions of access
and of non-arbitrary or discriminatory use, save when in your nature result the
contrary.
2. Common common use of the real estate of the public domain is free of charge, unless provision in
contrary in cases where the harnessing is divisible and provides an advantage
special.
Article 15.
Extraordinary common use
1. The extraordinary common use of the real estate of the public domain may be subject to
authorization and payment of fees.
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2. The authorisation referred to in the preceding paragraph shall, in particular, ensure the
compatibility and hierarchy of the multiple possible uses, the satisfaction of the need for
conservation of good and the prevention of production or extension of hazards arising from
one of its most intense harnessing.
Article 16.
Privately used securities
Private individuals may acquire private use rights from the public domain by licence or
concession.
Article 17.
Grant of custodisation
1. Across an administrative act or contract, may be conferred on individuals, during
a given period of time, exclusive powers of fruition of goods from the domain
public, upon payment of fees.
2. The term of the concession, unless otherwise stipulated duly substantiated, shall not
can be extended.
3. The right resulting from the concession may constitute the object of acts of transmission between
live and actual warranty provided that preceded by express authorization of the entity
conceding, of arrest, of penhora or of any other similar providence.
4. The violation of the provisions of the preceding paragraph shall determine the nullity of the acts provided for therein.
Article 18.
Extinguishing
1. The extinction of the concession prior to the course of the term by fact not attributable to the
concessionary gives you the right to compensation for the losses and damages suffered
corresponding to the expenses that are not yet amortized and that represent
investments in inseparable goods from the occupied real estate, or in goods whose
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disassembly or separation of the occupied real estate entails a deterioration
disproportioned from them.
2. The extinction of the concession by the time of the period does not confer on the concessionaire the right to
any compensation.
3. Expaint the concession, the occupied real estate shall be repurposed in the situation in which if
found at the date of the start of the concession, with disassembly or withdrawal of goods, or its
loss in favour of the conceder should the disassembly or separation imply a
disproportionate impairation of the occupied real estate.
Article 19.
Concession of exploitation
1. Across an administrative act or contract, they may be transferred to private individuals,
over a specified period of time and upon payment of fees, powers
of the management and exploitation of goods from the public domain, specifically those of authorisation
of ordinary common use and of granting of custodian use.
2. The concession that bestokes on the concessionaire the power to confer on third parties the use
deprivation of the public domain should include the main clauses stipulating the
terms of this use.
3. The term of the concession, unless otherwise stipulated duly substantiated, shall not
can be extended.
Article 20.
Real estate Heritage Management Programme
1. The State Estate Heritage Management Program, approved by resolution of the
Council of Ministers, on a proposal from the Minister of Finance, sets out the
procedures and coordination measures to be carried out in the administration of real estate
Members of the public domain and the private domain of the State, taking into account the
directions of economic and financial policy.
2. The State Estate Heritage Management Program is multiannual, and must have the
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duration of four years.
3. The measures that integrate the State Estate Heritage Management Program
are listed in the report of the proposed State Budget Bill.
4. Compete to the Minister of Finance to ensure compliance with the procedures and measures
constants of the State Estate Heritage Management Program.
5. The Minister of Finance may require the State's services and public institutes
detailed and justified information on the drafting and implementation of the
procedures and measures of the State Estate Heritage Management Program.
6. Failure to comply with the provisions of the Estate Heritage Management Program of the
State, as well as the duty of information referred to in the preceding paragraph, is communicated to the
Court of Auditors and constitutes aggravating circumstance of financial liability.
7. The competent bodies of the autonomous regions and local authorities shall also
approve multi-annual programmes establishing the procedures and measures of
coordination to be carried out in the administration of the respective real estate of the respective
public domains.
8. The approval of the State Estate Heritage Management Program does not harm
the approval and implementation of sector-related management programs related to
the requalification of military infrastructure.
Article 21.
Objective scope of the inventory
1. The inventory is intended to ensure the knowledge of nature, use and value
of the real estate.
2. The inventory of immovable property consists of the registration of the relative data:
a) To the identification, classification, evaluation and allocation of them;
b) To the identification and description of real rights that onset the real estate.
3. The organization and structure of the general inventory of the real estate of the public domain are
defined in the office of the Minister of Finance.
4. The inventory of military real estate shall be subject to own rules, in the terms to be fixed in
own diploma.
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Article 22.
Subjective scope of inventory
1. For the purposes of this decree-law, the inventory covers the real estate of the domains
public of the State, autonomous regions and local authorities;
2. The entities administering the real estate of the public domains of the State, of the
autonomous regions and local authorities, including those in the business sector, must
ensure the organisation and periodical updating of the respective inventories.
3. All entities that administer the immovable property of the public domain of the State,
including those in the business sector, must provide the Directorate-General for Heritage with the
elements necessary for the elaboration and updating of the general inventory of real estate
of the State.
4. The entities of the business sector referred to in paragraph 3 shall also proceed,
periodically, to the reassessment of the immobilized asset, own or the public domain
affection for its activity, with the aim of obtaining a more correct correspondence
between their fair value and their net book value.
Article 23.
Competencies
1. Compete to the Directorate General for Heritage to draw up and keep up to date, annually,
with reference to December 31, the general inventory of the real estate of the State,
including those of the public institutes.
2. The drafting and updating of the general inventory of real estate of the State, including
those of the public institutes, may be carried out by the entity selected by the
Directorate-General for Heritage, under the law.
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Article 24.
State General Account
The inventoration of immovable property referred to in the previous articles serves as the basis of the elaboration
of the balance sheets that integrate the maps regarding the patrimonial situation and which must, in the
terms of the law, follow up with the State General Account.
Article 25.
Program of Inventory
1. The inventoriing program establishes, in a timeframe, the intended work
the elaboration and updating of the inventories of real estate of the State, including those of
public institutes.
2. The inventoryprogramme aims to:
a) Contribute to the full implementation of the official public accounting plan
(POCP) or the applicable sectoral accounting plan;
b) Ensuring a real estate management model on the basis of appropriate technologies
of information and to allow for the compatibilization, reciprocal information and
update among the databases relating to heritage resources
public.
3. The programme of inventorisation referred to in the preceding paragraphs has multiannual character and is
approved by resolution of the Council of Ministers.
4. Compete to the Minister of Finance to ensure the implementation of the inventoried programme,
in articulation with the accounting standards committee.
Article 26.
Financial responsibility
The non-compliance with the duties of organizing and updating the inventory provided for in the
present decree-law, on the part of the holders of the organs and their officials, agents and
workers, constitutes aggravating circumstance of financial responsibility.
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Article 27.
Supplementary legislation
The Government must submit, by June 30, 2007, the necessary legislative initiatives
to the definition of the categories of goods belonging to the public domain of the State, the regions
autonomous and local authorities and the rules that are especially applicable to them.
Article 28.
Start of term
This decree-law shall come into force within 30 days after the date of its publication.
Seen and approved in Council of Ministers,
The Prime Minister
The Minister of State and Finance