You want to sell a property that is let. Before you sign anything, there is one step you cannot skip: if the tenancy has lasted for more than two years, the tenant has a right of first refusal (direito de preferência) on the purchase.
Under article 1091 of the Civil Code (Código Civil), you must notify the tenant of the planned sale by registered letter with acknowledgement of receipt and wait 30 days for the answer. Ignoring this step does not automatically void the sale, but it opens the door to a court action in which the tenant takes the buyer’s place — and, whoever you sell to, the lease does not end: it passes to the new owner.
The essentials in 30 seconds
- A right of first refusal exists when the premises have been let for more than 2 years (art. 1091(1)(a)).
- Notice is given by registered letter with acknowledgement of receipt and the tenant has 30 days from receipt (para. 4).
- Selling without notifying exposes the sale to the action for pre-emption of art. 1410, within 6 months of learning of the sale.
- The sale does not end the lease: the buyer succeeds to the landlord’s rights and obligations (art. 1057).
What the tenant’s right of first refusal is
A right of first refusal is not a veto. The tenant cannot block the sale or argue over the price. What the law gives them is the right to take the deal on the same terms that the landlord has agreed with a third party. If they accept, they buy at the price and on the terms notified; if they refuse or do not reply, the sale goes ahead as normal.
Article 1091(1) of the Civil Code lists two distinct situations:
- Paragraph (a) — a right of first refusal “in the sale or giving in payment (dação em cumprimento) of premises let for more than two years”. This is the classic case: the landlord decides to sell.
- Paragraph (b) — a right of first refusal “in the making of a new lease, where the tenant’s lease lapses because the right, or the legal powers of administration on which the lease was made, has ended”. This second right, says paragraph 2, “exists for as long as return of the building cannot yet be demanded, under article 1053” — that is, within the six months that article 1053 allows for vacating in cases of lapse.
Deadlines and rules: the reference table
| Issue | Rule | Legal basis |
|---|---|---|
| Minimum length of the tenancy | More than 2 years | Art. 1091(1)(a), CC |
| Transactions covered | Sale and giving in payment | Art. 1091(1)(a), CC |
| Form of notice | Registered letter with acknowledgement of receipt | Art. 1091(4), CC |
| Tenant’s response time | 30 days from the date of receipt | Art. 1091(4), CC |
| Sale of the let premises together with other properties | The notice states the price attributed to the let premises and the other values attributed to the properties sold together | Art. 1091(6), CC |
| Building not under horizontal property | Right of first refusal over the share corresponding to the let premises’ per-mille share (permilagem) | Art. 1091(8), CC |
| Several tenants in the same building | They can exercise the right jointly and acquire the property in co-ownership | Art. 1091(9), CC |
| Ranking against other pre-emptors | Immediately above the right of the owner of the land (art. 1535) | Art. 1091(3), CC |
How to give notice (and what it must say)
Article 1091(5) of the Civil Code applies “with the necessary adaptations, the provisions of articles 416 to 418 and 1410” — the general regime of rights of first refusal. In practice, this means the notice has to be a planned sale with the essential terms of the deal already settled, not a vague invitation to negotiate.
What the notice should contain:
- Full identification of the let property (address, unit, property register article);
- The price agreed with the interested third party;
- Payment terms and the expected date of the deed (escritura);
- Identification of the buyer with whom the deal is planned;
- Express mention that it is given for the purposes of the right of first refusal under article 1091 of the Civil Code and that the response period is 30 days from receipt.
If you are selling the let premises together with other properties — for example, the whole building or several units in one deal —, paragraph 6 obliges you to itemise in the letter the price attributed to the let premises and the values attributed to the other properties.
The special case of buildings without horizontal property
If you let flats or parts of a building that is not constituted as horizontal property, paragraph 8 of article 1091 solves an old problem. A residential tenant gets a right of first refusal “on the same terms as provided for the tenant of an autonomous unit”, with three specific features:
- The right applies to the share of the building corresponding to the let premises’ per-mille share, at the proportional value of that share against the total value of the transfer;
- The notice has to state those values;
- The acquisition is made “with allocation of exclusive use of the share of the building to which the let premises correspond”.
And paragraph 9 goes further: the building’s several tenants can join together and “exercise their rights of first refusal jointly, acquiring, in proportion, the whole property in co-ownership”. Anyone selling an entire investment building must therefore allow for this possibility and work out the per-mille shares before sending the letters.
A sale does not end the lease
This is the second classic misunderstanding. Many landlords sell convinced that the lease “falls away” when ownership changes. It doesn’t. Article 1057 of the Civil Code is short and clear: “The acquirer of the right under which the contract was made succeeds to the rights and obligations of the lessor, without prejudice to the rules of registration.”
The buyer becomes the landlord, with the lease exactly as it stands: same rent, same term, same renewals, same notices already given. If you want to know which deadlines for opposing renewal and terminating the lease they inherit, it is the existing lease that governs — not the date of the deed.
There is also a trap for buyers, set out in article 1058: “The release or assignment of rent or hire not yet due cannot be enforced against the lessor’s successor inter vivos, to the extent that such rent or hire relates to periods of time not yet elapsed at the date of succession.” In other words: if the seller forgave or took in advance future rent, that arrangement does not bind the buyer — who can keep collecting it from the moment they become the owner.
Checklist for the landlord selling a let property
- Date the tenancy. More than two years? If so, there is a right of first refusal to notify (art. 1091(1)(a)).
- Identify all pre-emptors. Besides the tenant, there may be co-owners and the owner of the land; paragraph 3 sets the ranking.
- Settle the terms with the buyer first. Without a price, payment method and deadline, there is no planned sale to notify.
- Send a registered letter with acknowledgement of receipt to each tenant, with all the elements above (art. 1091(4)).
- Count the 30 days from receipt, not from the dispatch date. Keep the receipt slip and the signed acknowledgement of receipt.
- Itemise values if selling together with other properties (paras. 6 and 7) or if the building has no horizontal property (para. 8).
- Prepare the file for the buyer: the lease, proof of registration with the AT, receipts, the history of rent updates, the deposit received and the inspection report.
- Tell the buyer about article 1057. They are buying the home and the lease. A surprised buyer is a dispute waiting to happen.
What you risk if you do not give notice
A sale made without respecting the right of first refusal is not, in itself, void — but the bypassed holder can react. Article 1091(5) refers to article 1410 of the Civil Code, which governs the action for pre-emption (ação de preferência): the holder of the right can ask the court to award them the share sold, within six months of learning the essential terms of the sale, depositing the price as provided there (Diário da República — Lexionário, in Portuguese).
It is also worth noting that the right of first refusal runs in the opposite direction too: in non-residential leases, article 1112(4) gives the landlord a right of first refusal “on the transfer of the business (trespasse) by sale or giving in payment, unless otherwise agreed” — one of the points covered in the guide to commercial leases.
Frequently asked questions
Can the tenant stop me selling the house?
No. Article 1091 of the Civil Code gives them a right of first refusal, not a veto: the right to acquire on the terms you notified to a third party. If they do not exercise it within the 30 days provided for in paragraph 4, the sale proceeds to the original buyer.
Do I have to give notice if the lease is under two years old?
Paragraph (a) of article 1091(1) restricts the right of first refusal to premises “let for more than two years”. Below that length, the tenant has no right of first refusal by this route — which does not rule out other pre-emptors, such as co-owners, or any rights agreed in the lease itself.
What happens to the lease after the sale?
It continues in full. Under article 1057, the buyer “succeeds to the rights and obligations of the lessor”. The rent, term and renewals do not restart. And, under article 1058, releases or advances of future rent agreed by the seller cannot be enforced against the buyer.
I sold without giving notice. Now what?
The bypassed tenant can bring the action for pre-emption provided for in article 1410 of the Civil Code, to which paragraph 5 of article 1091 refers, within six months of learning the essential terms of the sale. It is a situation that calls for immediate legal help, for both seller and buyer.
I have several tenants in the same building. How does it work?
Each receives their own notice. If the building is not constituted as horizontal property, paragraph 8 of article 1091 requires the share to be calculated by the let premises’ per-mille share, and paragraph 9 allows the interested tenants to exercise the right jointly, acquiring the whole property in co-ownership, in the respective proportions.
Does the right of first refusal apply to a gift or a partition?
Paragraph (a) of article 1091(1) covers sale and giving in payment. Transactions of a different nature fall outside that provision, but how they are classified depends on the specific terms of the act — check with a lawyer or solicitor before going ahead.
A well-drafted lease avoids half of these problems
Most blockages in sales of let properties come from incomplete leases: unclear dates, unidentified occupants, outdated addresses for notices. It is worth starting on the right foot — see our guide on keeping the relationship with your tenant free of conflict, and you can generate an NRAU-compliant lease agreement for free with every element you will one day be asked for at a deed. More guides for landlords in the Aluseg articles hub.
This article is for information only and is not legal advice. The rules described are based on the text of the Civil Code in force, but every situation has its own particulars. For your specific case, consult a lawyer or solicitor.
