La present nota informativa té com a objectiu comentar les novetats que us passem a relacionar, totes elles en matèria d’habitatge:
1. Judgment of the Constitutional Court (CC) No. 120/2024 of 8 October, published in the Official State Gazette on 16 November, regarding Law 1/2022 of 3 March
This judgment was issued in response to a constitutional challenge filed by more than 50 members of the Popular Parliamentary Group. The challenge concerned various provisions of Law 1/2022 of 3 March, which amended Laws 18/2007, 24/2015, and 4/2016 in different aspects. Essentially, Law 1/2022 aimed to reinstate provisions from Decree-Law 17/2019, which had been annulled by Constitutional Court Judgment No. 16/2021 of 28 January.
To understand the judgment under comment, it is necessary to briefly outline the content of Law 1/2022. The law amended Law 18/2007 by introducing, as a new assumption of non-compliance with the social function of property, the permanent and unjustified vacancy of a dwelling, the possibility of also declaring the abnormal use of housing in such cases (along with the potential imposition of coercive fines), and the addition of new infringements under Law 18/2007 (such as failure to comply with occupancy orders, refusal to provide information to the administration, and failure to propose a social rent agreement).
The Law also amended Law 24/2015 regarding the obligation to notify local councils when a mandatory social rent offer is made (simultaneously with notification to the tenant), the definition of large property holder (expanded to include individuals owning more than 10 dwellings), the possibility of imposing a temporary compulsory transfer of a dwelling to the public rental housing pool for social policy purposes, the obligation to renew mandatory social rental contracts if the qualifying conditions persisted, and the obligation to offer social rent before initiating eviction or foreclosure proceedings (both for pending and ongoing cases).
Finally, amendments were also made to Law 4/2016 to adjust the criteria for housing to be subject to expropriation, including the possibility of reducing the compensation payable in the event the property was vacant and had therefore been declared in breach of its social function..
The judgment declares the unconstitutionality of many of these measures and upholds others, as detailed below:
- As regards the general challenge to the entire content of Law 1/2022, it is entirely dismissed. The Constitutional Court reaffirms that powers relating to housing regulation lie with the Generalitat, provided they respect the basic framework set out in state legislation (currently found in Law 12/2023), which, in the Court’s view, is not infringed by Law 1/2022. The Court reiterates that the State’s powers to ensure equality among citizens do not imply the need for uniform treatment across all Autonomous Communities, as such an approach would render regional powers void of content.
- Regarding the provisions in Law 1/2022 that classify illegally occupied dwellings as vacant for the purpose of imposing negative consequences (such as coercive fines requiring occupancy or the possibility of compulsory temporary transfer to the administration), the Constitutional Court fully dismisses the appeal. The Court holds that the content of the social function of property (also referred to as the “institutional dimension of property”) may be defined by regional legislation, even if it affects the regulation of private property (a State competence), given that the two areas of regulation overlap.
The Court also declares the full constitutionality of Article 1.1 of Law 1/2022, considering that it does not violate the principle of culpability, contrary to the argument put forward in the appeal.
- The Constitutional Court declares unconstitutional those provisions of Law 1/2022 that required offering a social rent contract to occupants before filing for eviction or foreclosure, and that imposed penalties for failing to do so. The Court reiterates (as it had in previous rulings such as Judgments 28/2022 and 57/2022) that procedural rules fall under State jurisdiction, unless the regulation is based on specific features of regional civil law. The same applies to fines imposed for non-compliance with such obligations.
- The provisions requiring the renewal of mandatory social rental contracts are also ruled unconstitutional. The judgment reiterates that rules on private and civil contracting fall under the State’s basic legislative authority. The Court considers that contract law principles — such as binding force, essential elements and legal effects — fall within that scope. As regards leases, the applicable State law is Law 29/1994 on Urban Leases, which does not impose such an obligation and is based on the principle of freedom to agree on rent. The Court therefore finds that Catalan legislation cannot contradict these principles and thus declares the relevant provisions unconstitutional.
- Conversely, regarding Article 7, which provided for the automatic subrogation of the new owner in the legal position of the previous one, so as to assume the consequences arising from non-compliance with the social function of the property regardless of when the occupation began, the Constitutional Court finds this provision to be contrary to the principle of culpability and declares it unconstitutional. Accordingly, sanctions must be imposed on individuals, not properties.
- Finally, with regard to the challenge against the constitutionality of the new definition of “large property holder” set out in Article 9.2 of Law 1/2022, the Court considers that this definition is compatible with the applicable constitutional principles and is not, in any case, arbitrary. Moreover, the Court expressly declares the compatibility of the definition included in the State Housing Law (Law 12/2023, Article 3(k)) with the definitions that may be laid down in regional legislation for the purposes of rules enacted by the Autonomous Community.
To conclude this section, it is worth noting that the judgment differentiates the effects of its ruling. As regards the declaration of unconstitutionality of Article 7 of Law 1/2022 (concerning the automatic subrogation of the new owner), as well as all other sanctioning provisions declared unconstitutional, the Constitutional Court expressly states that the judgment entails the annulment of all implementing decisions with retroactive effect, regardless of whether they were subject to judicial decision or not — and therefore regardless of their res judicata status.
As for the remaining provisions, the judgment states that they will only affect non-consolidated legal situations, that is, those not yet decided by a final administrative or judicial ruling.
2. Publication of Decree 408/2024, of 22 October, approving the Sectoral Territorial Housing Plan (PTSH)
On 25 October, Decree 408/2024 was published, approving the Sectoral Territorial Housing Plan (PTSV). The Decree and the PTSV regulations were published jointly in the Official Gazette of the Government of Catalonia (DOGC). The approval of the PTSV fulfils a legislative mandate from 2007, which established that the Plan had to be approved within one year from the publication of Law 18/2007 (i.e. by December 2008).
The published text is the same as the version submitted for public consultation in summer 2022. As a result, some of its provisions are not fully aligned with the current regulation of the State Housing Law (Law 12/2023). However, these misalignments are minor (with the exception of the urban land reservation rules for protected housing, which will be discussed below).
The fundamental objective of the PTSH is to plan the development of affordable housing to achieve the goal of urban solidarity, as set out in Article 73 of Law 18/2007 — namely, that 15% of housing over the next 20 years must be allocated to social policy. To monitor compliance with this goal, the PTSH requires municipalities to establish a census of dwellings intended for social policy.
According to Article 74 of Law 18/2007, such housing includes not only officially protected housing (HPO), but also publicly owned dwellings, housing for mediation and inclusion, dwellings under lease extension, urban sharecropping arrangements, and employer-provided housing.
In our view, the terminology used by the PTSH regarding the term “social rent” is unclear, as it fails to convey that what the PTSH defines as social rent actually refers to all “housing intended for social policy (i.e. any housing let below market price, by any means).” It would have been much clearer to link Article 4 of the Decree and Article 4 of the PTSH Regulations, to clarify that the objective of securing social rental housing counts toward the urban solidarity goal, and is not an additional, separate target.
The PTSH also updates the list of municipalities designated as Areas of Strong and Accredited Demand (ADFA) in Annexes 1 and 2 (Types 1 and 2). The PTSH outlines the targets these municipalities must meet over the next 20 years, broken down into five-year periods. Municipalities must conduct a five-year review and justify any failure to meet these targets. The PTSH distinguishes between:
- ADFA Type 1 and Type 2 (Annexes 1 and 2): must reach 10.3% social rent by 01-01-2045 and meet urban solidarity targets set out in Annexes 3 and 4. (As mentioned, social rent is part of the urban solidarity objective, although this is not clearly stated in the regulations.)
- Preferred Areas (Annex 5): county capitals or towns with >5,000 inhabitants, where housing costs exceed 30% of income. Must reach 3.6% social rent by 2045; no general solidarity objective, but must promote 7 new HPO units per 1,000 inhabitants every 5 years.
- Rural Areas (Annexes 6 and 7): municipalities <2,000 inhabitants or >2,000 with complementary roles, and strategic population centres. Must reach 1.3% social rent by 2045. No HPO obligations.
- Non-preferred Areas: all other municipalities. Must reach 3.1% social rent by 2045 and promote 4.5 new HPO units per 1,000 inhabitants every 5 years.
The PTSH requires the Generalitat to create the Urban Solidarity Fund within the first five-year period and to regulate the expected financial contributions to support its implementation.
Local Housing Plans must be updated within two years of the Decree’s approval (i.e. by October 2026) to align with the PTSH.
The PTSH also introduces new land reservation requirements for HPO. In ADFA Type 1 municipalities (Annex 1), 50% of new residential development on Delimited Urbanizable Land and 40% on Non-Consolidated Urbanizable Land must be allocated to HPO (reducible to 30% if financially unviable). Half of this must be for rental HPO. For all other municipalities, general land reservation rules apply.
These minimum percentages conflict with Article 20 of the Revised State Land Law (TRLSRU), which sets a general minimum of 40% for residential floor area allocation. Accordingly, that rule should prevail, although the regional legislature may exceptionally allow lower percentages.
3. Resolution of 18 December 2024 by the Director of the National Statistics Institute (INE), on the method for updating the rent price reference index for housing leases
As stated in previous information notes, Law 12/2023 introduced limits on increases or revisions of residential rents. The sixth final provision capped rent updates at 3% for 2024. The first final provision added a new eleventh additional provision to the Urban Leases Act (Law 29/1994), which mandated the adoption of a new rent index, separate from the Consumer Price Index (IPC).
On 18 December 2024, the new index and its calculation method were published, and can be consulted by clicking here.
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Quedem a la vostra disposició per aclarir o ampliar el contingut d’aquesta nota i els recordem que les nostres dades de contacte són: dcn@clavellcanalsconstulting.com i acc@clavellcanalsconsulting.com.
Barcelona, 10 de febrer de 2025