Paragraphs 1 and 2 of Article 759 of the Civil Code, in the wording in force in its 87th version, state that ‘If the right of retention falls on immovable property, the respective holder, as long as the retained property has not been delivered, has the right to enforce it, under the same terms as the mortgagee, and to be paid in preference to the debtor's other creditors’ and that ‘The right of retention prevails in this case over the mortgage, even if the latter has been registered previously’.
In other words, according to the respective wording, the right of retention on immovable property that had not yet been delivered would prevail over the mortgage in an ‘absolute’ manner.
With the wording given by Decree-Law no. 48/2024, of 25 July, there is a strengthening of the mortgage over the right of retention, so that it is now provided that the limitation of the prevalence of the right of retention over the mortgage is subject to the situation in which ‘the holder of the right of retention has incurred expenses with the property with a view to its conservation or increase in value’, in order to ensure the reimbursement of expenses incurred with the property, provided that they have contributed to its conservation or increase in value.
So that paragraphs 1 and 2 of Article 759 of the Civil Code are now worded as follows:
‘1 - If the right of retention falls on immovable property, the respective holder, as long as he does not deliver the retained property, has the right to enforce it, under the same terms as the mortgage creditor, and, in cases where the claim ensures reimbursement of expenses to preserve it or increase its value, to be paid in preference to the debtor's other creditors.
2 - In the cases provided for in the final part of the previous paragraph, the right of retention shall prevail over the mortgage, even if the latter has been registered previously.’
It should be noted that, according to articles 3 and 4 of Decree-Law 48/2024 of 25 July, the wording in force applies to retention rights that are constituted after its entry into force, which occurs 30 days after publication (i.e. after 25/07/2024).
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