Key Benefits:
DRAFT LAW NO. 136 /X
Revoke the Decree No. 35,106 of November 6, 1945
(which regulates the occupation and allocation of houses
intended for poor families)
The Decree-law No. 310/88 of September 5, came to determine the form of
sale of houses built by the municipalities under the Decree No
34,486, of April 6, 1945. It is recalled that through this diploma if
authored the Government to promote the construction, within five
years, and through the administrative bodies and Misericordias, de
5,000 houses intended for housing of poor families in the centres
population of the continent and islands.
Expressly repealed by Article 22º of Decree-Law No. 310/88, that
"old" diploma of 1945 was regulated at his time by the Decree
paragraph 35,106, of November 6 of the same year, which " inserts several
provisions relating to the occupation and allocation of houses intended for
poor families ".
This last diploma, not expressly revoked by any
legislation, contrary to what happened with the Decree-law No. 34,486,
it has in its Article 12º that the occupants of the houses built by the
municipalities under Decree No. 34,486, may be dislodged
whenever they check out they have no need to occupy the house or if
"make them unworthy of the right of occupation that has been granted to them".
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Add to that Paragraph 1º of the same article lists followed by
set of situations especially applicable to residents and that,
at the very least, they are of dubious constitutionality.
Of rest, how to afflate what is "unworthy" and determinant of the eventual
eviction, how do you establish the body of the article?
Regardless of the legal discussion on whether the revocation
express of a particular degree (the Decree No. 34,486, in the case
concrete) automatically implies the repeal of all legislation,
specifically regulation that is affecting you, we consider
that being applied for such regulation not expressly
repealed, and containing it some violating principles of rights
fundamental of citizens, is the express revocation of that diploma to
best option to clarify this situation from time to time.
Stipulates Article 65º of the Constitution of the Portuguese Republic that
" everyone has a right, for themselves and for their family, to a dwelling of
adequate size ", tasking the state to ensure that right.
It is added that the principle of equality among citizens enshrined in the
article 13º of CRP determines that all citizens have the same
social dignity and are equal before the law.
" No one can be privileged, benefitted, harmed, deprived of
any right or exempt from any duty on the grounds of ancestry,
sex, race, language, territory of origin, religion, political beliefs or
ideological, instruction, economic situation or social condition ".
This is a structuring principle of the Portuguese constitutional system,
incidentally inherent in a rule of law.
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The prohibition of the arbitrium constitutes an external limit of the freedom of
conformation or decision of the public powers, following the principle
of equality as a negative principle of control (vide Vital Moreira,
Gomes Canotilho, Constitution of the Portuguese Republic, Annotated).
For his part, the right to housing connces the right not to be
arbitrarily deprived of housing and the right to obtain it by translating-
if in the requirement of the State measures and benefits appropriate to its
concretization. It is an analogous right to rights, freedoms and
guarantees and a constitutionally foreseen social law.
Being, for the reasons exposed, intention of the Parliamentary Group of the CFP
promote the express revocation of Decree No. 35,106, 6 of
November 1945, it matters to make it very clear that it is our concern
central prevent the creation of an eventual legal vacuum with respect to the
"provisions concerning the occupation and allocation of houses" of housing
social that that Decree was aimed at regulating.
Thus, revoked the Decree No. 35,106 of November 6, the conditions
objectionable that will be able to determine the occupation and the disengagement of
municipal fires and, consequently, the establishment and the
resolution of the respective contracts, established under the
Decree No 34,486, of April 8, 1945, regulated by the Decree
paragraph 35,106 of November 6 shall be governed by the framework
legislative in force that regulates urban tenancy.
The use of Decree 35,106, of November 6, 1945, which
has started to have a frequent and heavily contested application in the
Municipality of Porto from the years 2002 and 2003, motivated a
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initiative of the Parliamentary Group of the CFP in June 2003 during the
2ª legislative session of the IX Legislature, where it was already provided for revocation
of that legislation from 1945. This was indeed a legislative initiative in
that the CFP was at the pioneering time, having been the first party to take on
a concrete legislative act tendon to eliminate a performance
municipal supported by a legal framework manifestly
unconstitutional and that allows for the dislodging or eviction
administrative run summarily by mere indication and order
autarquica.
As the IX Legislature was interrupted by the decision of the
President of the Republic to dissolve the Assembly of the Republic and of
mark early legislative elections, this legislative initiative of the
Parliamentary Group of the CFP (Draft Law 328 /IX) has lapsed, not having
arrived to be debated.
In the meantime, and since the X Legislature has started, the situation has not been
changed. In The Municipality of Porto has been continuing the use of the
Decree 35,106 of November 6, 1945 in other municipalities of the Country
also continue to be recurrently used some of the
devices from that legislation that, unquestionably, conflicted with
the right of citizens to the imputation of administrative acts and not
allows them to be the Courts to appreciate, in adequate and useful time,
of the existence, or not, of reason enough for the resolution of
tenancy agreements.
In these terms, the Deputies of the Parliamentary Group of the CFP present
the following Draft Law:
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Article 1º
It is repealed the Decree No. 35,106 of November 6, 1945, which " enters
various provisions regarding the occupation and allocation of houses
intended for poor families ".
Article 2º
The resolution of the contracts established under the Decree No
34,486, of April 8, 1945, shall be governed by the stipulation in the legislation
general on the Urban Tenure Regime.
Assembly of the Republic, July 11, 2005
The Deputies