Parliamentary Group

Assembly of the Republic-Palace of S. Bento-1249-068 Lisbon-Phone: 21391 9233-Fax: 21391 7456 Email: gpcds@pp. parlamento.pt-http://cdsnoparlamento.pp. parliamento.pt

DRAFT LAW NO. 246 /XII

CHANGES THE CIVIL PROCEDURE CODE BY MODIFYING THE RULES REGARDING THE ORDER

OF REALIZATION OF THE PENHORA AND THE DETERMINATION OF THE BASIC VALUE OF THE SALE OF

REAL ESTATE IN PROCESS OF EXECUTION

Exhibition of reasons

The Bank of Portugal's data for 2012 reveal the impressive number of

699,129 persons with benefits of arrears.

Recognizing not being in the face of an unprecedented situation, we note, however, the

draw from a trend of aggravation, ratified by the data concerning the first

quarter, according to which 27,800 households contributed to the increase in credit

malstopped, which represents an addition of 4.1% face to December and translates to 306

new daily defaults.

As far as housing credit is concerned, if in 2011 only 34 people came in.

default, this number ascends vertiginously to 8,841 people in the first

three months of 2012, coming to a total, at the end of March, of 150 thousand families with

benefits in arrears.

At present, according to the Bank's Central Credit Accountability Office

Portugal, 15.3% of Portuguese with contracted credits find themselves in this difficult

situation. Still second to the same source, of the total amount of money borrowed by the

banks to households, the percentage value of 3.53% corresponds to collection credits

doubtful, belonging to dwelling 1.94% of the total, while in consumption the rate of

malstopped represents more than 10% percent of the granted.

In this context of acknowledged indebtedness and critical compliance, data concerning the

2

year 2011 reveal numbers of deliveries of houses higher than 6900 cases,

corresponding to an increase of 17.7% percent from the previous year, which corresponds to

a rhythm of nearly 19 houses delivered in dation in fulfillment, estimating that, in

2012, this number ascends to the 25 houses per day.

If as we reference supra the situation of over-indebtedness of Portuguese families is not

new, regardless of whether we can talk about a aggravation, the truth is that,

looking at this data, it is possible to conclude by being, at the moment, before a

distinct phenomenon.

The figures presented, when analysed in an identification perspective of the

causes, obliges us to undertake an interpretation that goes beyond the understanding

suffated in recent years and that releads in a reductive way to the existence of families

whose debts exceed the capacity to comply and which, following those options,

not always taken, there is to be recognized, with ample freedom, thus bear the

respective consequences.

What these figures reveal, with coldness and difficult contestation, is the existence of many

families who, at the mercy of the consequences of a crisis juncture, see themselves

impossible, or constrained, to comply with the credit commitments made,

particularly and, in particular, listening not only to the object of the present initiative,

but to the distinct nature of the good in cause, of the credit pertaining to its permanent housing.

Without prejudice, as noted supra , of the need for weighting as to the context in

that the options have been taken, there is actually a difference between the about-

indebtedness caused by disagreed family options, some with consequences

anticipatable, and, on the other hand, the over-indebtedness caused by a non-anticipable

aggravation of the living conditions of the families, of such luck that these see themselves

unable to, as up to here, be able to comply with their commitments to

credit.

It matters for this to look at this reality in a distinct way: we are not before

consequences of disagreed options taken by the families, which justly only

may be imputed to one's own, but in the face of the dramatic consequences of a crisis

triggered by bad public policies that now slaughter over the families. It was the

decades of spending and public borrowing that have led many of these families to this

difficult situation.

In the face of the dramatic inerences of the facts of the contemporary era, it is not possible to turn the

3

back to reality, nor to exclude from its analysis a responsible institutional framing

and politician.

This undisputed inheritance of the past and imposition of the present have driven, public and

politically, to a set of proposals targeted precisely for the families that

they find themselves in a situation of default and that, inter alia, a

set of assumptions, they pass, by the application of the institute of the dation in fulfillment

as a form of debt extinction.

The CDS monitors the need to participate in this legislative effort, recognizing the

need to define an enlightened, politically realistic and ethically correct position,

in the face of the inevitability of austerity, in the particular circumstances in which the same

may come to operate in the coming years.

Thus, the need to ensure the realization of an important one must be considered

balance between economic and social costs, rights and interests of the various parties

interveners, as well as possible perverse effects that the proposals may surmist in the

credit market to housing or the credit history of borrowers.

Having said that, it seems to us to be critical to highlight how the various approaches and proposals

publicly presented to deal with the problem of default, denote a

apparent attitude of resignation face to the same, not offering any more solutions beyond

reactions to default and consequently not discussing the need to anticipate

the problem.

In our opinion, regardless of the pertinence of reactive acting, we are

clearly in the face of a reality that requires a transversal approach, being

fundamental to consider the moments prior to default and find solutions

preventive.

Little has been spoken of the families who, not being in a default situation, nor whether

predicting that they will come to be in an immediate future, they are in the so-called ' line of

water ', living almost exclusively for the payment of credit to housing.

In fact, there is a huge range of the population, the so-called middle class, for which not

there are concrete statistics, which, depriving itself of an economically

healthy, has succeeded, and for some time will continue to achieve, pay for its

credit.

However, this fulfillment, which functions as an exclusiont factor of the scope of competence

normative of the proposals we know, has severe economic and social implications,

4

in particular, less savings and consumption, greater fragility in the face of adversity,

sacrifice of the academic and professional life of the children, declining birthrate, minor

propensity for the employess and restart of life, and, malognously, the conscience

of a path with a near-certain destination, i.e., the default of the contract to medium

deadline.

These families who currently live and prepare to live, almost exclusively, to

pay your credit for housing by escaping the mallets from the signage of default,

impose a solution.

In that scope, that is, the prevention of default, it matters to atone for the consequences

of the current legal regime of the pentimes.

In fact, many families see themselves in the contingency of, with the house penned by credits

low value, move to privilege the payment of these credits at the expense of the

compliance with the credito to housing, thus initiating a credit default to the

housing.

It matters for this to limit the possibility or opportunity of house attachment by the way

of small claims, without prejudice to ensuring the credit right of creditors, in a manner

to prevent that by these small credits, families will see themselves obliged to comply with

your credit to housing.

In this way, a change to Article 834 (2) is expected to be sought, precisely,

acautelate these situations, requiring that, for the penhour of own dwellings

permanent, if they meet tighter requirements.

It also becomes particularly adjusted to change the regime applicable to the executive process

of sale of the real estate data in warranty, in what concerne the assessment of the same,

looking to obviate any artificial devaluations of their value.

Thus, in the definition of the basic value of immovable property, it becomes determined that the value of

basis of real estate should be considered as identical to its market value, save in the

cases in which this value is lower than its tax equity value, and should be

be considering in these cases.

5

Thus, in the applicable constitutional and regimental terms, the Deputies of the CDS-PP,

present the following Draft Law:

Article 1.

Subject

Articles 834 and 886-A of the Code of Civil Procedure, approved by the Decree-are amended.

Law No. 44129 of December 28, 1961, as amended by Decree-Law No. 47690, of 11 of

May 1967, by Law No. 2140 of March 14, 1969, by the Decree-Law No. 323/70, of

July 11 by the Portaria No. 439/74 of July 10 by the Decrees-Laws paragraphs 261/75 of 27

of May, 165/76, of March 1, 201/76, of March 19, 366/76, of May 15, 605/76,

of July 24, 738/76, of October 16, 368/77, of September 3, and 533/77, of 30 of

December, by Law No. 21/78, of May 3, by the Decrees-Leis paragraphs 513-X/79, of 27 of

December, 207/80, of July 1, 457/80, of October 10, 224/82, of June 8, and

400/82, of September 23, by Law No. 3/83 of February 26 by the Decrees-Laws

128/83, of March 12, 242/85, of July 9, 381-A/85, of September 28, and 177/86, of

July 2, by Law No. 31/86, of August 29, by the Decrees-Laws 92/88, 17 of

March, 321-B/90, of October 15, 211/91, of June 14, 132/93, of April 23,

227/94, of September 8, 39/95, of February 15, 329-A/95, of December 12, by

Law No. 6/96 of February 29 by the Decrees-Leis paragraphs 180/96 of September 25,

125/98, of May 12, 269/98, of September 1, and 315/98, of October 20, by Law n.

3/99, of January 13, by the Decrees-Leis paragraphs 375-A/99 of September 20, and 183/2000,

of August 10, by Law No. 30-D/2000 of December 20 by the Decrees-Leis paragraphs

272/2001, of October 13, and 323/2001, of December 17, by Law No. 13/2002, of 19

of February, and by the Decrees-Leis paragraphs 38/2003, of March 8, 199/2003, of 10 of

September, 324/2003, of December 27, and 53/2004, of March 18, by Law No. 6/2006,

of February 27, by the Decree-Law No. 76-A/2006 of March 29, by the Laws

14/2006, of April 26, and 53-A/2006, of December 29, by the Decrees-Leis paragraphs 8/2007,

of January 17, 303/2007, of August 24, 34/2008, of February 26, 116/2008, 4

of July, by the Laws paragraphs 52/2008, of August 28, and 61/2008, of October 31, by the

Decree-Law No. 226/2008 of November 20, by Law No. 29/2009 of June 29 and by the

Decrees-Laws No 35/2010 of April 15, and No. 52/2011 of April 13, which go on to have the

next essay:

6

" ARTICLE 834.

(...)

1-(...)

2-Yet it does not suit, for excess, the amount of the credit exequendo, it is only

permissible the attachment of immovable property or the commercial establishment, provided that:

a) The penhour of other goods presumably does not allow for full satisfaction of the

creditor within twelve months, in the event that the debt does not exceed half the value of the

strand of the court of first instance and the immovable is the dwelling of its own

permanent of the executed;

b) The penhour of other goods presumably does not allow full satisfaction of the

creditor within eighteen months, in the event that the debt exceeds half the value of the

strand of the court of first instance and the immovable is the dwelling of its own

permanent of the executed;

c) The penhour of other goods presumably does not allow for full satisfaction of the

creditor within six months, in the remaining cases.

3-(...).

4-(...).

5-(...).

6-(...).

ARTICLE 886.

(...)

1-(...)

2-(...)

3-The basic value of real estate corresponds to the largest of the following values:

a) tributary value, in the terms of assessment made less than six years ago;

b) Market value.

4-(...).

5-(...).

6-(...).

7-(...).

7

Article 2.

Entry into force

This diploma shall come into force on the day following that of its publication.

Article 3.

Application of the law to pending proceedings

The present diploma applies to all pending proceedings except those in which the

Penhora has already been realized in accordance with the legal criteria then in effect.

Assembly of the Republic, June 1, 2012

The Deputies,