The deadline for landowners to clear their properties has passed, and the National Republican Guard (GNR) has commenced inspections of forest and agricultural land maintenance. This raises questions about responsibility if a fire occurs. Is it covered by insurance?
Hugo Monteiro, associate coordinator, Márcia Passos, hired partner, and Joana Alves da Silva, principal associate at PRA – Raposo, Sá Miranda & Associates, addressed these issues in a statement.
Who is responsible for damages if a fire starts on unmaintained land or affects uninsured homes?
“Responsibility depends on the specific origin of the fire and the potential attribution of liability to third parties, either by deliberate act or mere negligence, regarding both the causes of the fire and the potential aggravation of its consequences. If the fire risk is transferred to an insurer, they will have the right to claim from those third parties for the amounts paid, once the due compensation in case of an incident is paid.”
What insurances are mandatory or recommended in high-risk areas?
“For housing, fire insurance is mandatory. However, the legal obligation for fire insurance only applies to buildings in horizontal property (covering both the respective autonomous fraction of the contractor and their share in the common parts), and it is advisable to take out this insurance for other homes not in horizontal property, or even for properties used for commercial or industrial activities, considering the importance of their protection.”
What is (or is not) included in multirisk insurance coverage?
“In addition to fire coverage, it is common for insurance policies to cover other risks – such as water damage, electrical risks, seismic risks, among others – in so-called ‘multirisk’ insurance. However, as this is within the scope of optional insurance, solutions vary in the insurance market, offering several products that can be relatively customized to each person’s specific contract interest; therefore, each policy’s conditions must be carefully analyzed, as there may be substantial differences in coverage level, exclusions, and deductibles among different insurers, even for coverages with the same nomenclature.”
Can negligence nullify the right to compensation?
“For mandatory fire insurance, no; only in case of intentional act is the compensation excluded.”
Who is responsible when legal obligations (such as land cleaning) are not fulfilled?
“The responsibility for land cleaning lies with their owners or, if possession has been transferred, those who hold it under lease, usufruct, or other titles, unless agreed otherwise with the landowner.
If these responsible parties do not clean the land within the legal deadline, municipalities are required to ensure the cleaning, applying fines to those responsible for non-compliance.”
In what situations might the State or municipalities be liable?
“There is liability when the State, municipalities, or other public entities are the landowners. Additionally, certain areas are the responsibility of public entities to maintain, such as road and rail networks or SIRESP infrastructure. In these cases, failure to fulfill the cleaning obligation also leads to fines and possible civil liability if it is proven that the omission contributed to the occurrence or worsening of damages.
Regarding the possible violation by municipalities of their duty to notify landowners to clean and, in case of non-compliance, proceed with coercive execution at the owners’ expense, the question of liability is not straightforward. It can be quite debatable to what extent the municipality is responsible for failing to substitute the landowner in land cleaning.”
