Social Housing and Security: When does the law allow for contract termination?

When a criminal lives in a state-assigned house, should they be allowed to stay there?

This question divides opinions and raises a crucial debate about social housing in Portugal.

For years, the neighborhoods of Porto de São João de Deus and Aleixo were synonymous with crime, drug trafficking, and urban degradation.
The São João de Deus neighborhood, built in the 1950s, became a hotspot for serious social problems, leading to its demolition in the early 2000s as part of an urban redevelopment and rehousing plan.

The Aleixo neighborhood, built in the 1970s, gained notoriety mainly due to drug trafficking. Its demolition began in 2011, also with the promise of redevelopment and rehousing, but it sparked criticism.

The Zambujal neighborhood, in Amadora, has often been associated with crime and social exclusion. Built for rehousing purposes, it ended up facing issues related to drug trafficking, poverty, and lack of integration. Over the years, efforts have been made to improve living conditions, but the perception of insecurity remains a debated topic.

The presence of people involved in criminal activities in social housing raises debates about the effectiveness of rehousing programs and how they are managed. There is criticism that the social housing system does not always properly check whether beneficiaries meet the necessary criteria to maintain the support. Furthermore, some argue that living alongside individuals who commit crimes can negatively affect the remaining residents, who are mostly law-abiding citizens. Another issue is relocation: when problematic neighborhoods are demolished, former residents are rehoused in other areas, which can transfer criminal problems rather than solve them. In light of this reality, should criminals be evicted?

The right to housing is enshrined in Article 65 of the Portuguese Constitution, being guaranteed to all citizens. However, this is not an absolute right. When a household loses the right to social housing so it can be allocated to another household, this does not necessarily mean a violation of that right, but rather the management of a scarce resource. For that reason, the law sets strict criteria for maintaining social housing, providing for the termination of the right in cases such as improved economic conditions of the household, non-use of the property, or false declarations of income.

Supported tenancy can be terminated under Article 1083(2)(b) of the Civil Code and Article 25 of Law no. 81/2014, of December 19. According to these provisions, using the property in a way that is contrary to the law, good morals, or public order is grounds for contract termination. Additionally, Article 39(2) of the Lisbon Municipal Housing Management Regulation also provides for the cessation of occupancy rights on these same grounds.

In this context, a ruling by the Northern Central Administrative Court (TCAN) dated 17/01/2020 is noteworthy. It analyzed the case of a social housing tenant who appealed a decision by the Porto Administrative and Fiscal Court, which upheld the termination of her supported tenancy contract by the Porto City Council after it was found that her partner, convicted of drug trafficking, used the social housing for that illegal activity. The TCAN upheld the legality of the decision, emphasizing that using the property for illicit purposes constitutes valid grounds for contract termination. It also considered that, as social housing is a limited resource, it is essential to establish strict rules for its allocation and maintenance.

And if the crimes are committed outside the home?

Even if the offenses do not occur within the rented property, the involvement of residents in criminal activities can be invoked by the municipality as grounds for contract termination. The municipality may argue that their presence compromises neighborhood safety and violates public order, a termination ground provided for in Article 39 of the Lisbon Municipal Housing Management Regulation and Article 46(2)(h) of the Porto Municipal Housing Management Regulation.

Therefore, committing crimes outside the home is not automatically a reason for terminating supported tenancy, but it can be if it compromises security and the residential environment; there must be a link between the unlawful behavior and the disturbance of public order.

It should be noted that any decision to terminate the contract must respect the principles of the presumption of innocence. That is, the existence of suspicions or ongoing criminal proceedings is not enough to justify the contract's termination. There must be a final, unappealable criminal conviction to claim an unquestionable violation of public order.

It is clear that, underlying this issue, there must always be a case-by-case analysis, considering the family context and the composition of the household in question.