Grandfathering in Portuguese building law: What applies to existing buildings?

Historical development of building regulations in Portugal

The rules governing spatial planning and urban development have evolved over the years. With Decree-Law No. 38382 of 7 August 1951 (which introduced the Regulamento Geral das Edificações Urbanas) the obligation to obtain a building permit was introduced for the first time – initially only for urban areas, certain protection zones designated for district capitals, all other localities subject to urbanisation and expansion plans by law, and buildings of an industrial nature or for collective use.

In the following decades, the municipalities extended this obligation to other areas. From 1991 onwards, Decree-Law No. 445/91 made it mandatory nationwide for all new buildings, as well as for the reconstruction, enlargement, alteration, repair and demolition of buildings and for measures that result in a redesign of the terrain.

At the same time, new protection instruments were created that restricted construction in certain areas, e.g.:

• Reserva Agrícola Nacional (RAN) – protects agriculturally valuable soils

• Reserva Ecológica Nacional (REN) – preserves ecologically valuable/sensitive areas

• Establishment of nature reserves

• Classification of monuments and corresponding protected areas

In addition, there was increasing regulation with regard to fire safety, accessibility and public use.

These developments led to a progressively dense and complex set of rules governing where and how construction is permitted.

What does Grandfathering mean?

Grandfathering is a key principle in Portuguese building law. It states that new legal provisions generally only apply to future construction projects. Buildings that were lawfully constructed in accordance with the law in force at a certain point in time are generally not affected by provisions that come into force later.

This principle is enshrined in Article 60 (1) of Decreto-lei No. 555/99 of 16 December (Regime Jurídico da Urbanização e Edificação – RJUE):

‘Buildings constructed in accordance with the previous law and their respective use are not affected by legal and administrative provisions enacted subsequently.’

Grandfathering protects existing legal positions and creates legal certainty and protection of legitimate expectations for owners and investors.

To which builings is grandfathering rights applicable?

Grandfathering is applicable if the building:

1) was legally constructed – it must have been constructed in accordance with the legal provisions applicable at the time of construction. If a building permit was required, this must have been obtained and the construction must have been carried out in accordance with this permit.

2) is structurally sound – it must not be so dilapidated that its structure and use are no longer recognisable.

For buildings that were constructed before a building permit was required, a certificate of grandfathering can be applied for from the local authority, provided that the building is still stable as described above.

Reconstruction and Structural Alterations

If a building enjoys grandfathering protection, reconstruction or structural alterations are permitted provided that:

• no new or more severe deviation from applicable regulations arises, or

• the measures improve safety and health conditions.

The following definitions must be observed:

Reconstruction: Construction work following the complete or partial demolition of an existing building, leading to the restoration of the façade structure. There is some controversy as to how many and to what extent the exterior walls must be reconstructed – the interpretation varies depending on the municipality.

Alteration: Construction work that changes the physical characteristics of a building or part of a building – such as the load-bearing structure, the number of residential units or interior rooms, the type or colour of the exterior cladding – without increasing the floor space, total area or façade height.

An extension – i.e. construction work that leads to an enlargement of the floor space, total building area, façade height or volume of an existing building – is not automatically permitted, as it usually leads to a greater deviation from the (new) applicable regulations.

However, municipalities may expressly permit certain extensions in their Plano Diretor Municipal (PDM).

Use and supplementary requirements

The law may:

• lay down special conditions for the performance of certain activities – including in buildings that were already used for these purposes under previous legislation; 

• require supplementary work to be carried out that is necessary to improve the safety and hygiene conditions of the building.

Conclusion: Grandfathering as a balance between legal certainty and development

Grandfathering is the result of the legislator's search for a fair balance between the protection of existing buildings and the balanced further development of urban planning law and regional planning. Owners benefit from legal certainty, while at the same time the structural quality and safety can be improved and the values to which regional planning is dedicated can be adequately protected.

Marlene Sennewald Sippel / Carolina Costa