November 2, 2023

The complete guide: short-term rentals and Mais Habitação in Portugal

‘Mais Habitação’ is the name given to a set of regulations and legislative changes that have been in effect since October 6, 2023. These regulations were published with the objective of facilitating housing for tenants and first-time homeowners. To achieve this, this legislative package addresses almost all aspects of the real estate sector, including various rental markets, real estate transactions, and new housing construction.

This also means that “Mais Habitação” includes specific measures for the short-term rental (alojamento local) sector, including new rules for AL (alojamento local) licenses, such as their issuance, transfer, and maintenance, as well as new taxes applied to income generated from this rental activity.

What exactly does “Mais Habitação” say about short-term rentals in Portugal? How will the new changes affect your rental income?

And what alternatives are available to ensure the continued protection of your property and the maintenance of your real estate income?

What is “Mais Habitação”?

As mentioned earlier, “Mais Habitação” comprises a set of legislative changes with a final version approved by the Portuguese government on October 6, 2023 (Law No. 56/2023 | DR (diariodarepublica.pt)). It has been established to facilitate access to and the maintenance of primary residence properties.

These legislative changes are comprehensive as they aim to intervene in nearly all aspects of the real estate market, impacting landlords, tenants, property owners, and investors. They encompass various rental markets and address the procedures and fees associated with property acquisition, maintenance, and transfers.

One of the key objectives of “Mais Habitação” is to increase the availability of properties in the long-term rental market at affordable prices, often referred to as the ‘traditional market.’ This goal is expected to be accomplished, in part, through the conversion of short-term rental properties into long-term residential units (Article 1(1) (g)).

What are the measures of “Mais Habitação” for short-term rentals in Portugal?

The “Mais Habitação” package introduces various changes to the short-term rental sector in Portugal, addressing areas such as licensing and income taxation. Let’s begin with the first topic.

“Mais Habitação” and short-term rental licenses

Suspension of new short-term rental licenses

“Mais Habitação” approved the immediate suspension of the issuance of new short-term rental licenses throughout the country for the “apartment” and “lodging establishment integrated into an autonomous fraction of a building” categories.

It should be noted that other types of rentals, notably those developed in detached houses, are not affected by this law, and this suspension does not apply to the entire territory.

According to “Mais Habitação”, it is still possible to request AL licenses in official interior territories that have not declared a housing shortage situation, in the autonomous regions of the Azores and Madeira, and for properties through the Revive Nature Fund.

The interior territories (municipalities and parishes) where this is possible (provided there’s no housing shortage in the area) are identified by the Government in the annexe to Portaria 20/2017 of June 13. You can find this information directly in the Diário da República, or in our article where we list all the interior territories affected by this ordinance in text format.

READ MORE: INTERIOR TERRITORIES AND Short-term rentals – MAIS HABITAÇÃO

In the other regions of the country, the lifting of these suspensions may still be authorized by the municipalities. Just like in the interior territories exception, the municipality must not be facing a declared housing shortage situation. Such a condition would grant them access to a dedicated pool of resources for addressing housing-related issues.

The determination of a housing shortage condition will be based on the individual analysis conducted by each municipality regarding their local housing landscape. The analysis results will be documented and published in what is known as the Municipal Housing Charter (Carta Municipal de Habitação).

For this assessment, municipalities will need to evaluate whether there is an adequate supply of properties for both residential and student accommodation. Depending on the findings, they may choose to decline special funds to address any housing shortages, which would then allow the issuance of AL licenses again.

Conditions for the issuance of new short-term rental licenses

To apply for a short-term rental license, it remains a requirement to submit a prior communication (comunicação prévia) to the municipal council through the electronic single counter (balcão eletrónico único).

However, if the property in question is an independent unit in a building under a horizontal property regime (allowing individual usage for each unit) with a title designating the unit as a residential property, the license application process now includes the requirement of submitting minutes of a condominium meeting authorising the use of the unit as a short-term rental, in accordance with the amendments to articles 5 and 6 of Decree-Law No. 128/2014).

Condominiums, however, also play a more active role in maintaining the validity of existing licenses, a topic we will address in the following section.

Expiration of existing short-term rental licenses

Article 7 of the same decree-law now outlines a series of situations that will lead to the automatic expiration of the AL license. These situations include:

Expiration of short-term rental licenses in case of transmission

According to the new legislation, all short-term rental licenses are now personal and non-transferable, which means that licenses cannot change ownership.

This condition previously applied to licenses issued within areas defined as “containment areas,” but now it applies to any license in case of transmission, regardless of the property’s location or whether the original holder is an individual or a legal entity (company).

In the case of legal entities (companies) that hold any licenses and undergo a transfer of their capital, the short-term rental license(s) (which previously would expire in the case of a transfer of social capital exceeding 50%) will now expire regardless of the percentage of capital being transferred.

The only exception to this rule is in cases of succession, where the short-term rental license (licença de alojamento local) can be transferred to another holder.

Expiration of short-term rental licenses in case of cessation, change of operation, or inactivity

If a property, originally intended and licensed for short-term renting (AL), ceases its AL operation, the license will expire.

The license will also expire if the property is used for another activity or enters the traditional rental market through the registration of a rental contract with the Portuguese tax authority.

Notably, since “Mais Habitação” was published in October 2023, short-term rental license holders have a two-month period to demonstrate the continued operation of their AL activity.

Proof of the maintenance of local accommodation operation activity

The legislation (Article 21) specifies that this proof can be furnished by submitting a fiscal contribution statement (tax return statement) through the electronic single counter (balcão eletrónico único) via the ePortugal website, the same platform used for the prior communication when applying for the license.

The website has been updated to facilitate the upload of the necessary statement. Simply visit the dedicated short-term rental page on the official website and scroll down to choose the last option: “Send proof of local accommodation activity.”

You will also be able to follow this process using our illustrated guide on how to submit proof of business for your AL activity.

As explained to GuestReady directly by the Tourism of Portugal office, and which is now also available on the ePortugal website, the tax return or “contribution statement” may be one of the following options:

– The last income statement for IRS or IRC purposes

– The last periodic IVA / VAT declaration related to the short-term rental operation activity.

If the activity was registered this year, the VAT declaration should be provided. If it’s not available yet, the declaration of the start of the activity obtained from the Tax Office at the time of starting operations should be submitted.

Renewal period for short-term rental licenses

AL licenses will now have a duration of five years, starting from their date of issuance, and will be renewable for equal periods.

Renewals will be subject to the criteria established by the respective municipal council for issuing new licenses, including the rules of “Mais Habitação” and the data published in the Municipal Housing Charters of each municipality, as described above.

To renew a short-term rental license, the licence holder must also use the electronic single counter within 120 days before the expiration date of their license.

Exceptions to the expiration of short-term rental licenses

Licenses issued before the publication of the “Mais Habitação” laws (October 6, 2023) are an exception to this 5-year deadline, and their renewal will only be mandatory after a seven-year period starting now and ending in the year 2030.

Also exempt from expiration are short-term rental licenses registered at the same location as the permanent house of the license holder, provided that it is not rented for more than 120 days per year.This article will be updated with control procedures for this criterion when officially communicated.

Additionally, the expiration criteria do not apply to licenses issued prior to the entry into force of the “Mais Habitação” laws and whose local accommodation establishments have been used as real collateral (i.e., mortgage) for property acquisition loan contracts under certain conditions.

In addition to the license having been issued before October 6, these contracts must have been signed by February 16, 2023 (the date on which “Mais Habitação” was first announced). They must still be outstanding on December 31, 2029, on the eve of the year when the first license renewal would take place. For these cases, the first reevaluation for renewal will only occur after the full amortisation of that contract.

We may update this article with the deadlines associated with these renewals after 2030 when more official information is published.

Cancellation of short-term rental licenses

Condominium and short-term rentals

The condominium, in addition to playing an active role in allowing new registrations to be issued in the building, now also has a more relevant role in maintaining short-term rental licenses for apartments (more precisely, according to the new Article 9 of the Regulation of Local Accommodation (Decree-Law No. 128/2014, of August 29) units “in an autonomous fraction of a building or part of an urban building capable of independent use”.)

According to the previous legislation, it was necessary for half of the condominium’s members to provide evidence that short-term rentals were causing disruptions to the normal use of the building or resulting in annoyance and discomfort for other residents. Subsequently, the condominium was required to file a complaint with the municipal council, along with supporting evidence of these complaints. The decision to revoke or retain the license was ultimately at the discretion of the respective municipality’s mayor.

According to “Mais Habitação,” now, with a two-thirds majority of the condominium per mille, residents can object to short-term rentals in any unit within their building. This decision only requires notification to the mayor, who must officially cancel the respective license within 60 days of receiving the notice. No proof of disturbance or decision-making by the mayor is needed.

However, this opposition cannot be enforced if the unit’s use for short-term renting has already been approved in a prior assembly and if the property title allows such rentals.

If a license is cancelled due to condominium opposition, the same property cannot be used for short-term rentals again, even by other license holders, until a new condominium meeting approves the issuance of a new license.

Other obligations for short-term rentals

It is now mandatory for short-term rentals in buildings under the horizontal property regime to display a sign inside the property, indicating the noise regulations. These regulations prohibit noise that may affect public health or neighbourhood tranquillity every day between 11:00 PM and 7:00 AM, according to Decree-Law No. 9/2007, January 17. The sign should be placed in a visible location.

Moreover, if the building has a condominium, the condominium may require the provision of a permanent contact telephone number for emergency situations to be shared with other condominium owners.

READ MORE: CONDOMINIUMS AND SHORT-TERM RENTALS

Tax changes for local accommodation

IMI (Municipal Property Tax) for short-term rentals

“Mais Habitação” has also introduced changes to the Municipal Property Tax code (IMI) concerning the amounts to be paid for properties used for short-term renting.

As a result, the obsolescence coefficient, initially calculated as 1 and typically decreasing over time, resulting in reduced taxes, will now always remain at 1 for properties in the short-term rental market. This means that the IMI value will no longer decrease over time for such properties.

Alojamento Local Extraordinary Contribution (CEAL)

The regulations introduced by “Mais Habitação” have also established CEAL, an extraordinary contribution that mainly applies to licensed short-term rentals in autonomous fractions or parts of urban buildings with autonomous use in urban settings (mainly apartments in city buildings) across the entire Portuguese territory, including the autonomous regions of the Azores and Madeira.

You can find detailed information about this new tax in the dedicated GuestReady article:

READ MORE: THE COMPLETE GUIDE TO CEAL – MAIS HABITAÇÃO

In summary, by law, the following are exempt from paying this contribution:

Short-term rentals operating in the interior regions, as defined in the annexe to Order No. 208/2017, which you can learn about in this article;
Short-term rentals operating in fully-owned buildings, meaning detached houses, even those with lodging establishments;
Room-based short-term rentals, which means renting out no more than 3 rooms in the tax residence of the short-term rental licence holder;
Short-term rentals registered in the permanent residence of the licence holder that are not rented more than 120 days per year;
Short-term rentals registered in properties not intended for residential use, such as those used for services or commercial purposes.

In addition to these permanent exemptions, there are other situations eligible for exemption, depending on the simultaneous fulfilment of special conditions at a parish level during each calendar year.

Therefore, local accommodations located in parishes without housing pressure in that year will be exempt. This means that, cumulatively, the STRs cannot be located in a parish within a municipality facing a housing shortage in any area, and that municipality must have a properly attested housing balance in their Housing Chart. Additionally, no part of the parish territory can be marked by law as an urban pressure area.

At the beginning of each year, municipalities must inform the Tax Authority about the parishes that meet the exemption criteria mentioned above for the previous year, so it will only be possible to determine whether there will be exemptions in some interior locations or not after the rental has already been rented that year.

Non-deductibility

We should also add that, even if its expense is accounted for during each taxable period, the alojamento local extraordinary contribution (CEAL) will not be deductible in corporate income tax (IRC).

Calculation of CEAL

CEAL maintains a fixed percentage of 15%, while its taxable base fluctuates based on several annual factors. These factors will be applied to the gross area of the short-term rental and include:

The average income generated per room in the short-term rental market in Portugal for that year,
The increase in the long-term rent value in the area where the short-term rental is located since 2015,
And also, the increase in the long-term rent value in the most expensive area of the country since 2015.

If you want to know more about the calculation formula of the short-term rental extraordinary contribution we recommend reading our complete and detailed guide on CEAL.

Information updated yearly

CEAL is applicable to all valid short-term rental licenses as of December 31 of each calendar year, provided they are not exempted by the exceptions listed above.

The parameters mentioned above will be communicated annually by the competent authorities, and each license holder is responsible for ensuring the settlement of their tax.

Payment of the Alojamento Local Extraordinary Contribution (CEAL)

To pay this tax, an official declaration form must be provided by the competent authorities. This form should be filled in and submitted by the license holder within a deadline that concludes on June 20 of the following year, with a payment deadline of June 25.

CEAL for 2023

For this year’s calculation, the average income per room in the short-term rental market in Portugal for 2019 will be considered, as reported by INE (Portuguese Institute of Statistics).

Regarding the other elements, the government will communicate the missing coefficients for the calculation of CEAL within up to 60 days from the publication of “Mais Habitação” (October 6, 2023), and we will update this article with these values in the future.

Update: part of the values were published on 29th December 2023, and we’ve updated this article with the section below.

2023 coefficients update:

Mais Habitação CEAL tax for 2023

On the 29th December 2029, the Portuguese government published one of the two mandatory CEAL coefficients to be used on the calculation of your 2023 CEAL tax on Ordinance No. 455-E/2023.

Our experts at GuestReady explain how we calculate the second CEAL coefficient, the short-term rental economic coefficient, on the complete guide about CEAL.

To estimate how much your CEAL tax will be, you will need to:

– Find your short-term rental area (área bruta privativa), which you can find on your property’s title (caderneta predial). This can also be seen or downloaded from your account on the Autoridade Tributária website.

– Find your Urban Pressure Coefficient on the Ordinance published on December 29th (here). This ordinance is only available in Portuguese, but you should be able to find your short-term rental location on the list, and you need to take note of the number you see in front of it.

– Multiply 209,875 by your short-term rental area. Then, multiply the result by your urban pressure coefficient which you found on the Ordinance linked above. In the end, multiply the result by 0,15 to find our the final tax owed.

If you have more than one property, you will need to calculate this for every single licenced short-term rental you own.

As a final note, we also kindly remind you that, to get an accurate value, you should wait for your Autoridade Tributária (tax authority) payment document, which will notify you about the deadlines and exact amounts regarding your short-term rental activity in Portugal. The values and calculations seen above are our experts’ interpretation of the currently available legislation and ordinances, which, although not definite or confirmed by AT, we hope can help you get a brief idea of how much tax you will most likely have to pay in June of this year. If our prediction and calculations are any different from the Tax Authority’s formula we expect the government to eventually publish, we will update this article accordingly.

Possible unconstitutionality of CEAL

There are some constitutional issues raised by some jurists about CEAL, such as the fact that this tax, although charged to the registration holder of the activity, could be attributed to the property owner if the registration holder does not pay it.

However, the main issue raised concerns the violation of the constitutional principle of the capacity to contribute.

As we explain, CEAL uses the average income of short-term rentals in the entire country for its calculation, rather than using the actual income received by the taxpayer (i.e., the license holder). This concept is called “presumption of income” because it presumes that this was the average income earned by all short-term rentals active during each given year, and does not take into account the actual earnings of each rental.

Therefore, two short-term rentals in the same area (or even within the same building), one operating throughout the entire year and the other only for the month of August are subject to a similar CEAL. This is because the law presumes that they earned the same income, given their proximity.

This income presumption has raised concerns among some legal experts, as it may infringe upon constitutional principles, such as equality, the prohibition of taxing assumed income, and the capacity to contribute.

These constitutional principles dictate that individuals with similar earnings should pay equal amounts in taxes, while those with varying incomes should be taxed proportionally. The imposition of taxes based on assumed income, rather than actual earnings, could potentially conflict with these principles.

These concerns, among others, might prompt a review of the extraordinary contribution for alojamento local, but for now, the tax has been approved and is in effect under these conditions.

Future updates on “Mais Habitação” and short-term rentals

As we mentioned throughout the text, we still need to await future communications from government bodies regarding:

Update of the single electronic counter for sending the proof of the maintenance of the local accommodation activity: this situation has already been updated. You can find further details in this article and in our upcoming guide, set to be published this week.
~~The coefficients for the calculation of CEAL in 2023~~ – updated;
Mechanisms for controlling and verifying the renting of permanent residences for less than 120 days per year.

GuestReady is in communication with the relevant authorities, and this article will be updated as these points are explained further through official communications.