Is it possible to buy a house with cryptocurrencies in Portugal?

The Order of Notaries (ON) will communicate this week instructions for the realization of real estate exchange deeds for cryptocurrencies, and transactions with a value of more than 200,000 euros will have to be reported. See, in our article, which consists of these new instructions related to cryptocurrencies and the differences between a buy and sell business and an exchange business.

The increasing adoption of cryptocurrencies the regulations of ON

It is undeniable that the adoption of cryptocurrencies by individuals and companies has been increasing, and the consequence of this has been the attempt to create regulations of supervisory entities such as Banco de Portugal, with the publication of Notice No. 3/2021, which regulates the rules relating to the registration process with Banco de Portugal applicable to entities that perform activities with virtual assets, provided for in Article 112a of Law No. 83/2017, in its current wording.

Although the ON regulation is still being finalized, it allows real estate transactions, in the form of exchange deeds, and with counterpart in cryptocurrencies, to happen. However, those who wish to make this exchange will have to communicate to the notary, up to five days before the deed, detailed data on the origin of the funds, which will then be sent to the Central Department of Investigation and Criminal Action (DCIAP) and the Financial Information Unit.

What to do if you want to exchange cryptocurrencies?

In order to exchange this property for cryptocurrencies , the following data must be communicated to the notaries, which must then be sent to DCIAP and the Financial Information Unit, up to five days before the deed:

• Identify the parties involved in the transaction (name, profession, address);
• Reveal the price and type of cryptocurrency;
• Provide proof of the purchase of cryptocurrencies (records from the acquisition of virtual currencies to the time of the business);
• Send information about wallets (storage wallets);
• Indicate the date of the deed.

What if the transaction exceeds 200,000 euros?

When the transaction exceeds this amount, in addition to prior communications, there are still other rules to comply with:

• The operation shall be reported to the authorities;
• You will need to compare the value of cryptocurrencies at the date of the Purchase and Sell Promise Agreement and their value at the date of deed.

It should be said that deeds of purchase and sale or exchange will continue to follow the normal procedures if the amount of payment or exchange is fiduciary. If this amount comes from cryptocurrency brokers, it is up to them to determine the origin of the funds and comply with the requirements for money laundering and terrorist financing.

What is the difference between a buy and sell business and a swap business?

It should be noted that a buy and sell business and an exchange business are manifestly different in nature, although their practical effects are similar.

The purchase and sale, under civil law, is the contract by which the ownership of a thing (in this case, the property) is transmitted by paying a price. however, instead of paying a price, the transfer of ownership to one of the subjects of this business relationship takes place by the delivery of another property by the third party, whose ownership is also transferred, and there is a real exchange of goods.

On the specific issue of cryptocurrencies, this is where the essential difference lies. It should be seen that, under civil law, the notion of "price" includes only currency that has legal course in the country in which the transaction is made, at the nominal value that the currency at that time has, without prejudice to the possibility of using foreign currency, through the use of the exchange rate on the day of the transaction.

It follows that cryptocurrencies are not (yet) considered as currency for the above legal effects, so it cannot be talked about the existence of a contract of sale, since cryptocurrencies do not consider themselves as the price to be paid in exchange for the transfer of ownership of the property, for this reason we speak of exchange, since there is the exchange of one property (immovable) for another (cryptocurrency).

Concluding

However, the truth is that the exchange business is now an atypical contract, which no longer has specific regulations in our law. Thus, civil law determines that the rules of purchase and sale apply to other contracts by which goods are disposed of, such as the exchange. Thus, in the exchange contract, the reference regulation is removed, adaptably, from the legal provisions relating to the contract of sale, to the extent that they comply with its nature and are not in contradiction with the respective legal provisions.

This determination assumes the utmost relevance for those who acquire real estate through the exchange /exchange for cryptocurrencies, as it will benefit from an identical legal regime, as if a true contract of purchase and sale were, assuming this transaction the desired level of legal certainty and protection of the parties.