Locative Maintenance in Commercial Properties in Portugal

In the dynamic spectrum of real estate and retail properties in Portugal, governed primarily by the Novo Regime do Arrendamento Urbano (NRAU) effective since 27 June 2006, the civil code provides significant flexibility in terms of how maintenance and expenses are allocated in non-residential agreements. Disputes regarding these maintenance obligations fall under the jurisdiction of the Tribunais Judiciais (Civil Courts). Unlike residential leases, commercial parties have broad latitude to define who supports the costs of the space.

Limits in the Silence of the Text and Supplementary Basis: Who Does What?

If a commercial contract is silent and defines nothing regarding works and maintenance: The default legal rule under Article 1074 of the Civil Code is that the Landlord is responsible for all conservation works, including both ordinary and extraordinary repairs. This baseline doctrine places the burden of maintaining the property—from vital structural elements like roofs and foundations to general upkeep—on the owner unless otherwise stipulated.

Contrary to common assumptions, "tiny expenses" or small repairs do not automatically fall on the tenant in the absence of a contractual clause. Under the default regime, the landlord remains responsible for all conservation. However, tenants are generally responsible for "Functional Adaptation" or works aimed at the specific operational rules that exclusively serve their business licensing (such as specific industrial ventilation required for a restaurant), as these are often categorized as tenant-specific fit-outs rather than property conservation.

Freedom in Contract Negotiations and "NNN (Triple Net) Clauses"

In Portugal, there is full legal coverage for parties to deviate from the default rules. Under Article 1111 of the Civil Code, parties to a non-residential lease have full freedom to allocate the burden of works and repairs as they see fit, allowing for the total transfer of maintenance obligations to the tenant.

Regarding taxes and common costs, Article 1078 of the Civil Code governs "Charges and Expenses." For non-residential leases, Article 1078 (nr. 4) allows parties to freely agree on who bears these costs, including property taxes (IMI) and condominium fees. In the absence of a written agreement, the landlord is legally responsible for property taxes and common area expenses, while the tenant is responsible for direct utility consumption (water, electricity). This flexibility allows for the implementation of Triple Net (NNN) regimes, where the tenant absorbs all invoices for maintenance, IMI, and condominium repairs to provide "pure yields" to the landlord.

Future Property Compensations for Portuguese Aesthetic Interventions at End of Agreement

The legal framework regarding improvements (benfeitorias) is governed by Articles 1074 (nr. 4) and 1273 of the Civil Code. Unless the contract strictly stipulates otherwise (such as through a "Renunciation of Compensation" clause):

1. Necessary Improvements: The tenant is entitled to compensation for works performed to prevent the deterioration of the property.
2. Useful Improvements: For improvements that increase the property's value but are not necessary for its preservation, the tenant has the Right of Removal (Jus Tollendi), provided they can be removed without damaging the property.
3. Non-Removable Improvements: If useful improvements cannot be removed without causing damage, the tenant is entitled to compensation based on the rules of enrichment without cause, unless the contract explicitly waives this right.

If the tenant chooses to remove improvements, they are required to perform a Total Complete Restoration of any damage caused during removal, returning the infrastructure to a form similar to its original state at the time of the initial lease signature.

Tools like the Landager platform support owners of parks in logistics real estate with all essential photographic tracking and references in chronic intertwined maintenance in the asset of corporate tenants and in minutes of maintenance duties in invoices (Maintenance/Tracking).

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