Legalisation of illegal buildings in Portugal: legal framework and procedure

Introduction

Carrying out construction work without the necessary authorisation – whether a building permit or prior notification, depending on the case – raises complex questions. Is legalisation possible? What conditions apply? What consequences may arise? This article explains the legal framework and the applicable procedure.

1. Is legalisation possible?

The first step is to check whether legalisation is permissible. This depends on whether the applicable laws and regulations permit the type of construction in question with its characteristics at the specific location.

2. Which law is applicable?

Legalisation is assessed according to the law applicable at the time the legalisation application is examined, not according to the law applicable at the time of construction.

In practice, this means that restrictions introduced retrospectively can prevent legalisation – even if the structure would have been permissible at the time of its construction.

This solution is controversial and open to criticism, but it is applied by the municipalities. Only in rare cases has a different solution been allowed, such as in the ruling of the Tribunal Central Administrativo Norte of 22 January 2021 (case 00654/19.4BEAVR), in which restrictions under public law that came into force later were disregarded. This was justified on the basis of the fundamental right to housing (Art. 65 of the Portuguese Constitution), as it was the first and only home of the applicant and his family.

3. Restoration of urban plannung legality

Legalisation is only possible if the question of legalisation under applicable law is answered in the affirmative. The aim is to bring the actual situation into line with the legal system.

In some cases, adjustments are necessary – e.g. the correction of window and/or door dimensions.

In other cases, legalisation is impossible – for example, in the case of a building constructed in an area where new buildings are prohibited, such as in the National Ecological Reserve.

4. Payment of a fine does not legalise the building

Payment of a fine does not confer the right to retain the illegal building and does not make it legal.

The administrative offence proceedings are of a punitive nature (they punish the violation of the applicable urban development and spatial planning regulations) and are usually followed by an order to restore legality – which may include demolition.

5. Applicable Proceeding

If legalisation is possible – with or without adaptation work – it must be clarified whether the procedure requires a classic permit or prior notification. For more information, see the article ‘Overview: Building in Portugal’.

The procedure is initiated with the relevant local authority and includes all legally required documents (project, declarations of responsibility, plans, etc.).

6. Possibility of administrative offence proceedings

Finally, it should be noted that initiating the legalisation procedure may trigger administrative offence proceedings for illegal construction work.

Conclusion

The legalisation of an illegal building is a complex process that depends on the applicable law and is subject to urban planning restrictions. Before proceeding, it is crucial to check the feasibility and prepare the necessary documents.

Marlene Sennewald Sippel / Carolina Costa