Author(s) Inês Nogueira Rebelo
Advisor(s) Américo Fernando Gravato Morais
Synopsis The topic discussed in this dissertation reflects a doctrinal and jurisprudential controversy, which has an increasingly important practical interest. Debt has increased with the economic crisis and, thus, the obligations to which one was committed to have become harder to meet; consequently, creditors have increasingly executed their guarantees, especially mortgages on real estate. Therefore, it becomes necessary to resort to enforcement proceedings to ensure the satisfaction of those mortgages. To this end, mortgaged real estate is pledged, and, generally, there is a judicial order to sell the property in order to reimburse the mortgage claim. This procedure safeguards the credit and satisfies the debt. However, the procedure does not stop there. Every so often, properties subject to mortgages, which are judicially pledged and sold to satisfy their respective mortgage claim, are already burdened with a tenancy agreement. This situation raises the following question: which rights prevail, the right to lease, or the mortgage? This dissertation aims to answer this question. We tried to analyse the various doctrinal theories regarding the tenants’ legal rights, without overlooking what jurisprudence has been deciding on the subject. Nevertheless, not before carefully studying the legal regimes of expiry of tenancy agreements, mortgaging, and the executive process, especially its most important phases: the judicial pledge and sale. We can conclude, after a thorough research and intensive study, that the tenancy agreement should expire with the judicial sale of the mortgaged property, under Article 824, paragraph 2, of the Portuguese Civil Code, when contracted after the mortgage’s registration.
See more here.