The purpose of this informative note is to comment on the updates listed below, all pertaining to housing matters:
- Judgment number 79/2024 of the Constitutional Court dated May 21, 2024, regarding Law 12/2023. This judgment was published on June 24, and its significance lies in the fact that it is the first ruling concerning the state law 12/2023 on the Right to Housing.
- Agreement of the Plenary of the City Council of Barcelona dated September 27, 2024, which extends the declaration of preemptive rights and rights of retraction for the Municipal Term of Barcelona.
Below is a detailed commentary on both updates:
1. Judgment of the Constitutional Court number 79/2024, dated May 21, 2024, on the unconstitutionality of various provisions of Law 12/2023 on the Right to Housing
This judgment was issued by the Constitutional Court (hereinafter, TC) following the constitutional appeal brought by the Government of the Junta de Andalucía. The appeal sought to declare a number of provisions of Law 12/2023 unconstitutional: articles 3(f), (g), and (k); 8(a) and (c); 9(e); 11(1)(e); 15(1)(e); 16; 18 paragraphs 2, 3, and 4; 19, paragraph 1 second clause and paragraph 3; 27 paragraph 1, third sentence and paragraph 3; 28; 29; 32; 33; 34; 35; and 36; additional provision three; transitional provision one; final provision one paragraphs u, three, and six; and final provision four.
The judgment affirms the constitutionality of nearly all the contested provisions.
The challenge presented by the Junta de Andalucía was based on arguments of jurisdiction, asserting that the State lacks authority to legislate in housing matters with the specificity and detail they argue is present in the provisions under dispute.
In response, the TC – Legal Ground First of the ruling – examines the constitutional doctrine regarding housing and the interaction of state and autonomous competences on the matter. In this examination, which draws from various rulings issued to date, the TC recalls that the fact that some Autonomous Communities have assumed exclusive competence in housing does not prevent the State from regulating the basic conditions for the exercise of rights by establishing an essential framework of rights and duties that ensures “equality among all Spaniards.” Thus, the conditions established in state regulation will be deemed basic as long as they aim to guarantee equality among Spaniards, without constituting a complete regulation.
Subsequently, the TC examines the constitutionality of the provisions of Law 12/2023 concerning the regulation of the Basic Statute of the Citizen (related to housing), the declaration of a tense or strained residential market zone, the Basic Statute of housing owners and large holders, the regulation of protected housing, public housing parks, and modifications related to the legal regime of the Urban Leasing Law.
To conduct its analysis, the TC recalls that the State has competency titles that authorize it to dictate the provisions of Law 12/2023, based on its exclusive competence. These titles are:
- Article 149.1.1 of the Constitution: to regulate the basic conditions that guarantee equality among all Spaniards in the exercise of their rights and compliance with their constitutional duties.
- Article 149.1.13 of the Constitution: to regulate the bases and general coordination of economic activity.
- Article 149.1.8 of the Constitution: to regulate civil legislation.
- Article 149.1.6 of the Constitution: to regulate procedural legislation.
- Article 149.1.14 of the Constitution: to regulate tax legislation and treasury matters.
The central issue analyzed by the ruling is the scope of state competences and their relationship to the fact that the Autonomous Community of Andalusia – and other autonomous communities, such as Catalonia – has exclusive competence in housing, assumed following the provisions of Article 148.1.3 of the Constitution and Article 56 of the Statute of Autonomy of Andalusia.
The Judgment only declares unconstitutional and annuls articles 16 (which established a minimum state legal regime for official protected housing); part of 19.31 (concerning the information that public administrations could require from large housing holders in tense or strained residential market areas); the third paragraph of article 27.1 (which contained a listing of the types of housing that can be integrated into public housing parks); article 27.3 (which provided for the allocation of certain types of income to public housing parks); and the First Transitional Provision of the Law (which establishes specific provisions for official protected housing and public housing parks).
The previous provisions are declared unconstitutional because the State has overstepped its regulatory authority in these aspects, either by encroaching on an autonomous regulatory competence without the need to guarantee the bases of economic coordination (as is the case with articles 16, 27.3, and the first transitional provision), or by excessive detail in regulating certain aspects (as is the case with the regulations that lead to the unconstitutionality of articles 19.3 and 27.1). Thus, it must be the Autonomous Communities that legislate on the aforementioned matters.
At the same time, the dismissal of the appeal concerning the remaining provisions is based on the argument that these are provisions issued in exercise of the designated state competences and have the character of basic provisions. Therefore, the rest of the Law is considered constitutional.
The TC’s analysis leads us to recognize the importance of Autonomous Communities legislating on housing. It is not an area in which they have traditionally intervened, but now more than ever reality compels adaptation to new times and an understanding that a public housing policy must be as connected to the population’s needs as possible. This is thus an unavoidable autonomous matter at present.
2. Agreement of the Plenary of the City Council of Barcelona dated September 27, 2024, extending the declaration of preemptive rights and rights of retraction for the Municipal Term of Barcelona.
On October 7, 2024, the Agreement adopted by the Plenary of the City Council of Barcelona on September 27 was published, through which the initial approval and the opening of the public information procedure for the agreement to extend the declaration of preemptive rights and rights of retraction for the city of Barcelona, as provided for in article 4 of the urban regulations, were agreed upon.
This agreement, which is processed as a punctual modification of the Metropolitan General Plan, has been adopted under articles 15 and 37 of Law 18/2007 and will entail an extension (if finally approved and published) of the declaration of preemptive rights and rights of retraction concerning housing transmitted to the city of Barcelona for a period of 6 years.
The agreement is based on the need to expand the public housing stock in the city, considering preemptive rights and rights of retraction to be a highly useful tool in recent years, and for this reason, it has been agreed to prolong its effects. However, there is a lack of concrete data regarding the extent of the implementation of this tool, which would allow for a general understanding of its utility.
The housing that may be subject to preemptive rights and rights of retraction as a result of this measure will only be:
- Entire multi-family buildings primarily used as residences.
- Land with ruined or completely vacant buildings.
- Vacant housing subject to the vacant housing tax, regulated by Law 14/2015, of July 21.
It should be noted that the provisions of article 2 of Decree Law 1/2015 remain in effect, which subjects housing acquired in a foreclosure process or through compensation or payment of debt with a mortgage guarantee to the rights of preemptive rights and rights of retraction, if acquired after the entry into force of Law 18/2007 (i.e., after April 9, 2008). This right of preemption can be exercised by the Generalitat or the municipalities where the housing is located, following the procedure regulated in the aforementioned article 2 of Decree Law 1/2015 and articles 87 to 91 and 134 to 136 of Law 18/2007.
We remain at your disposal to clarify or expand on the content of this note, and we remind you that our contact details are: dcn@clavellcanalsconsulting.com and acc@clavellcanalsconsulting.com.