It also analyses the right to succeed to the position of tenant in a contract entered into before the R.A.U. came into force, as well as the consequences of paying rent for the period following the expiry of the respective lease.
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Article 1079 of the Civil Code (hereinafter referred to as the C.C.) states that ‘The urban lease terminates by agreement of the parties, cancellation, expiry, termination or other causes provided for by law’.
With regard to expiry, Article 1051 d) of the Civil Code states that ‘The lease contract expires: (...) d) On the death of the lessee (...)".
In accordance with article 57 of the NRAU, and in the case of a contract concluded before the RAU (Decree-Law no. 321-B/90, of 15 October) came into force, article 57 of the NRAU applies to transfers on death in residential leases, pursuant to the provisions of article 26(2), applicable ex vi articles 27 and 28, all of Law no. 6/2006, of 27 February (NRAU).
According to the aforementioned article 57 of the NRAU, under the heading ‘Transfer on death in residential leases’:
1 - The residential lease shall not expire on the death of the original tenant when he is survived by:
a) Spouse living in the property;
b) A person living with him in a de facto union, residing in the leased premises;
c) Ascendant who has lived with him for more than one year;
d) Child or stepchild under 1 year of age or who has been living with him/her for more than one year and is under 26 years of age or is attending the 11th or 12th year of school or a secondary or higher education establishment;
e) A child or stepchild over the age of majority, who has been living with them for more than one year, who has a proven disability of more than 60 per cent.
2 - In the cases set out in the previous paragraph, the tenant's position is transferred, in the order of the respective paragraphs, to the persons referred to therein, with the ascendant, child or eldest stepchild taking precedence on equal terms.
3 - When the tenant is survived by more than one ascendant, there is a transfer by death between them.
4 - The transfer in favour of the children or stepchildren of the original tenant, under the terms of the preceding paragraphs, shall also occur upon the death of the person to whom the right to the lease has been transferred under the terms of paragraphs a), b) and c) of no. 1 or under the terms of the preceding paragraph.’
According to the provisions of Article 1053 of the Civil Code, ‘In any of the cases of forfeiture provided for in subparagraphs b) and following of Article 1051, the restitution of the property, in the case of a lease, may only be demanded six months after the occurrence of the event that determines the forfeiture.’
On the other hand, Article 1069(2) of the Civil Code states that ‘In the absence of a written lease agreement which is not attributable to the tenant, the tenant may prove the existence of a title by any means permitted by law, demonstrating the use of the leased premises by the tenant without opposition from the landlord and the monthly payment of the respective rent for a period of six months’.
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Now,
The case at hand concerns a lease agreement concluded on 01/03/1974, during which the original tenant died and, subsequently, his spouse died, leaving their son living in the property, for around 20 months after the death of the original tenant's spouse, until he was asked to vacate the property due to the expiry of the lease, during which time the son/occupant continued to pay €50.00 as supposed rent.
With regard to the transfer of the rental contract in the situation described above, the Court ruled that, in the case in question, ‘the legal regime of residential rental does not confer on the adult child, aged 26 or over and under 65, without a disability with a proven degree of incapacity equal to or greater than 60 /prc or aged 65 or over and without a household RABC of less than 5 RMNA, living in the tenancy with the original tenant parent and with the parent on the latter's death, and continuing to live there after the latter's death, the right to succeed to the position of tenant, the tenancy agreement being extinguished on the death of the parent, by expiry, in accordance with the provisions of Art. 1051, para. 1 of the Civil Code. The court ruled that there were no grounds for transferring the position of tenant to the son of the original tenant/Defendant.
With regard to the fact that the sum of €50.00 had been paid as supposed rent over a period of around 20 months, the Court of Appeal held that
‘none of the facts that make up the matter of fact relevant to the decision of the case allow us to maintain that the appellant and the respondents wanted and proposed to enter into a new lease agreement, which would always be admissible under the terms of Article 1069(2) of the Civil Code.
And if article 217 of the Civil Code admits a tacit declaration of negotiation, the conditions laid down in paragraph 1 - if it is deduced from facts that, in all probability, reveal it - for the legal relevance of this form of declaration of negotiation are not met either.’
Therefore, in the absence of any facts other than the payment of ‘rent’ in the sum of €50.00, the Court of Appeal held that ‘there are no facts in the case file to support the conclusion of a new lease’.
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Summary:
‘In view of the provisions of Article 57 of the NRAU on transfer on death, the legal regime for residential tenancies does not confer on an adult child, aged 26 or over and under 65, without a proven disability. In view of the provisions of Article 57 of the NRAU on transfer on death, the legal regime for residential leases does not grant an adult child, aged 26 or over but less than 65, without a disability with a proven degree of incapacity equal to or greater than 60 /prc or aged 65 or over and without a household RABC of less than 5 RMNA, living in the tenancy with the original tenant parent and with the parent on the latter's death, and continuing to live there after the latter's death, the right to succeed to the position of tenant, the tenancy agreement being extinguished on the death of the parent, by expiry, in accordance with the provisions of Art. 1051, para. 1 of the Civil Code. This is contrary to the provisions of Articles 1051(c) and 1079 of the Civil Code and the body of Article 57(1) of the NRAU.’
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