TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 127/13

27 of February of 2013

Headnotes:

The Civil Code norm that allows a court to order, as the effect of a divorce and particularly in the light of the needs of each of the ex-spouses and the interests of the couple’s children, that the family home be rented to one member of the former couple, irrespective of whether the property belongs to them jointly or is even owned solely by the other member, and the latter opposes the rental, is not unconstitutional.

The norm in question does not have the effect of completely eliminating the right to property in a way that could be said to constitute an expropriation. The rental is subject to the rules governing rentals for housing purposes. The owner is not deprived of his/her ownership, and the norm cannot be directly accused of sacrificing the practical economic consistency of the law. Renting is one way in which a landlord can benefit from the assets he/she owns, and the ex-spouse and now tenant of the ex-family home is obliged to pay the other ex-spouse a rent that constitutes compensation for assignment of the enjoyment of the thing.

The aspect of the right to property that the ex-spouse who has forcibly been turned into a landlord is deprived of is the jus utendi. The owner and former spouse can neither use the asset, nor assign or commit its use, by an act that is undertaken of his/her own free will or can be attributed to him/her; and he/she is required by an act of authority (the court’s) to assign use of the thing to his/her ex-spouse.

In the case of this norm, the objective of limiting the powers to use the thing is to fulfil the constitutional requirement to protect the family in the phase following divorce and legal separation from bed and board. This specific bond to which the property is subjected exists because of the family and may come to an end when supervening circumstances justify it. It is inherent in the essence of the conjugal bond (in the present case, this was the form in which the family was constituted) that that bond affects the spouses’ personal and asset-related situations, giving rise to rights and duties that may last beyond the moment at which the bond itself is dissolved. This is not a sacrifice imposed on a right-holder in the name of a generic social “mortgage” on the property; rather, it represents the continued existence of a situation that emerges from the effects of marriage and lasts beyond the latter’s termination.

The Court considered that the norm does not violate the guarantee which the Constitution affords to the right to private property, inasmuch as it is legitimated by the need to defend a social element which the Constitution itself deems fundamental.

Summary:

The appellant argued that a Civil Code norm was unconstitutional because it violated the fundamental right to private property, to the extent that it obstructed the right-to use and enjoyment dimensions of that right.

The norm is part of a list of measures designed to protect the family home. Their purpose is to defend the stability of the family accommodation from the point of view of the children, spouses and ex-spouses, both during conjugal life and in crisis situations brought about by either divorce or judicial separation from bed and board, or the death of either of the spouses. In passing these norms, the legislator was of the opinion that in such cases the results of an application of common-law rules would not be adequate and might even be undesirable.

In situations in which a family establishes its main residence in rented property, there have long been measures to protect the family home if the conjugal union is dissolved by death, divorce or separation. The norm before the Court in this case extended this protection of the family accommodation to other hypotheses, in which the home is not rented from a third party. In the event of divorce or judicial separation and in a situation in which the family resides in a property that belongs solely to one of the ex-spouses, common-law rules would deprive the other of the home in which he/she had been living, even if he/she were the ex-spouse with the least resources and the one into whose care the couple’s children had been placed. The same could happen when the couple’s assets were shared out after a divorce, if the family home was the common property of both members.

The particular norm that is of interest here allows a court, at the request of one of the ex-spouses, to order that the family home be rented to him/her, whether it was the common property of the couple, or belongs solely to the other ex-spouse, and the latter opposes the rental. In taking its decision, the court must particularly consider the needs of each of the parties and the interests of their children. This is not a transmission to the ex-spouse who was not contractually a tenant, of a right to a pre-existing rental, by judicial order or the effect of a law, nor is it the concentration of that right in the hands of one of the previous tenants. The norm permits the formation of a rental relationship, whose genesis lies in a fact constituted by a judicial decision – an act of state authority. This rental is subject to the rules governing rentals for housing purposes – namely those on setting the amount of the rent and the obligation to pay it – and, after first hearing the parties, the court can not only define the contractual terms and conditions, but also later order the termination of the rental at the landlord’s request, when so justified by supervening circumstances.

The Constitutional Court recalled its own jurisprudence, in which it has constantly said that while property/ownership is a presupposition of personal autonomy and the corresponding right is one of the various economic, social and cultural rights that are included in the Constitution, it also possesses a dimension that enables at least part of that right to be numbered among the constitutional rights, freedoms and guarantees themselves.

The Court’s jurisprudence makes it clear that the civil-law concept of property and the corresponding constitutional concept are not one and the same thing.

The subjective dimension of the right to property includes each person’s right not to be deprived of his/her property, except by means of appropriate proceedings and in return for fair compensation – proceedings for which the Constitution makes provision.

The guarantee which the Constitution affords to the objective dimension of property is reflected first and foremost in constitutional commands to the ordinary legislator. The latter is forbidden to annul or affect the essential core of the infra-constitutional ‘institute’ of property and is required to shape that ‘institute’ in the light of the need to harmonise it with the principles derived from the constitutional system as a whole. So there exists a clause in the law governing the social shaping of the concept of property to which constitutional jurisprudence has always referred and one of whose consequences is that the right to property that is recognised and protected by the Constitution is a long way from the classic conception, under which the right to property is seen as jus utendi, fruendi et abutendi – a conception which must be rendered compatible with other constitutional requirements.

An owner’s freedom to use and enjoy his/her assets naturally forms part of the right to property to the extent that the latter refers to the universe of things. However, the constitutional limits on precisely this aspect are particularly intense, and the law can establish limitations – legitimated by the need to defend other constitutional values – on the owner’s powers to use a thing. Within the overall set of abilities that are inherent in proprietas rerum, the jus utendi is the one whose content most needs to be determined and is most capable of being subjected to limitations. The grounds for the need before the Court in the present case are to be found in the need to make the right to property compatible with other constitutional values. The Court therefore held that the norm in question is not unconstitutional.

Cross-references:

Rulings nos. 44/99 (19-01-1999); 329/99 (02-06-1999); 205/00 (04-04-2000); 263/00 (03-04-2000); 425/00 (11-10-2000); 57/01 (13-02-2001); 187/01 (02-05-2001); 391/02 (02-10-2002); 139/04 (10-03-2004); 159/07 (06-03-2007); and 421/09 (13-08-2009).