There are various ways of terminating a lease agreement, which can occur at the will of the parties or independently of them.
Among the ways of terminating a lease at the will of the parties, we can look at the will of the tenant, the will of the landlord, or the will of both.
In this text we deal with termination of the lease by the tenant.
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From the outset, this form of termination of the lease is distinguished from opposition to renewal of the lease by the fact that the former can be exercised at any time, whereas opposition to renewal is only applicable to contracts that renew automatically, with the aim of preventing their renewal at the end of the contract.
Thus,
According to Article 1098(3) of the Civil Code,
“Without prejudice to the provisions of the following paragraph, once one third of the initial term of the contract or its renewal has elapsed, the tenant may terminate it at any time by notifying the landlord at least
a) 120 days from the intended end of the contract, if the term of the contract is equal to or greater than one year;
b) 60 days of the intended term of the contract, if the term is less than one year.”
The wording of this paragraph shows that there are two conditions to consider. On the one hand, a period corresponding to 1/3 of the duration of the contract (or its renewal) for the contract to be terminated and, on the other, a period corresponding to the legally required notice period for the contract to be terminated.
Although it seems straightforward, there is no uniform understanding in doctrine and case law as to how these two conditions/two deadlines coincide.
We therefore have the following positions on the matter in question:
A)
The first, defended, for example, by Elsa Sequeira Santos and Maria Olinda Garcia, argues that the two periods can run simultaneously, with the rule essentially safeguarding the minimum duration of the contract corresponding to 1/3 of the contract, and thus considering that what the legislator wanted to safeguard was for the contract to have a duration, at least, corresponding to 1/3 of the contract entered into, with this minimum expectation being legally protectable.
This is the position that favors the tenant.
and
B)
A second, defended, for example, by Pinto Furtado, who argues that the periods run successively, separately, with the first period corresponding to 1/3 of the lease and, subsequently, the notice period, thus safeguarding the rule of a minimum duration to be able to exercise the right to terminate the contract, emphasizing the will underlying the contract granted and this being the position that favors the landlord.
As far as we know, case law tends towards the second position, in the sense that the periods run separately.
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Notwithstanding the above, it will still be possible for the tenant to terminate the lease if the landlord opposes the renewal of the lease under the terms of Article 1097 of the Civil Code, in which case the tenant may terminate the lease no less than 30 days before the intended end of the lease, under the terms of Article 1098(4) of the Civil Code.
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Finally, we cannot fail to mention that the above-mentioned terminations of the contract take effect at the end of one Gregorian calendar month from the date of the notice, and that failure to comply with the 120 or 60 days' notice does not prevent the termination of the contract, but does oblige the payment of the rents corresponding to the missing notice period, unless it is the result of involuntary unemployment, permanent incapacity for work or the death of the tenant or of a person who has been living with them in common economy for more than one year.
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