“It has to respect the autonomic competence”. “It has a problematic constitutional fit.” “The preliminary draft must adhere to the incidental scope of state powers.” These are just some excerpts from the new report of the General Council of the Judiciary (CGPJ) about him draft of Law for the Right to Housing.
“The opinion is devastating in its justification of the legal weaknesses of the draft. Mlots and very seriouss. Y it dismantles the supposed absolute and fundamental right to housing on which the entire compendium of legal measures is built that violates private property and common sense”, says Mikel Echavarren, CEO of Colliers.
Felipe Sicilia, spokesman for the PSOE, has reiterated what was said by the Minister of Transport, Mobility and Urban Agenda, Raquel Sánchez: “It is mandatory but not binding.” Sicily has also indicated that the law will go ahead with “total guarantee and legal certainty.” Once the Government studies it, it will determine what “it has to do or not”.
Therefore, and despite the report of the CGPJ, the law will see the light, and everything indicates that without relevant changes. “The report adds more uncertainty about the bill that was born with little political consensus and in the industry. It will be short-lived and difficult to apply”, indicates Ferran Font, director of Estudios de piso.com.
And not only because some autonomous communities, such as those led by the Popular Party (PP) have said that they do not plan to apply it. Even in other Autonomous Communities, such as Catalonia, where there is already a law in this regard, there were certain doubts about whether it is applicable or not due to jurisdictional problems.
Returning to the subject of Catalonia, Mikel Echavarren indicates that “this type of experiment has already been tested with disastrous consequences in Barcelona”. It should be remembered that, since its implementation in October 2020, the offer of new developments of new construction has been reduced to its minimum expression and rents have become more expensive than those of Madrid.
The current wording of the bill will cause, if applied, just the opposite effect that it recommends, which is none other than promoting access to housing”, says Echavarren. The CGPJ criticizes “the cumbersome content” of the text in regard to the limitation of rental prices, and points out its “regulatory complexity that could lead to not a few legal proceedings”.
A statement that is shared by José Ramón Zurdo, general director of the Rental Negotiating Agency (ANA): “We are glad to know that the Council also sees that price intervention is not justified, precisely because of other failed experiences in countries of the EU, and very specifically in the closest example of Catalonia. Here the intervention of prices not only did not lower rents, but it has reduced supply”.
A law that, due to this jurisdictional problem, continues to generate more noise. “A more long-term housing law is needed that does not depend on political colors. The CGPJ report adds more uncertainty to a law that raises doubts”, reiterates Ferran Font. It calls into question the legitimacy of the Government in terms of housing and in the terms in which it does so. Consequence? It will end up going through the Constitutional Court.
It is true that what is known as the housing law leaves to the autonomies, for example, the freedom to apply or not the stressed areas and the rest of the interventionist measures on prices and the duration of the contracts that it entails. But the application of these measures would allow “completely ordering” the matter of housing in said autonomy.
“As the CGPJ points out, in no case can the State do this. Therefore, if the Law is applied, it would clearly be invading the regional housing powers”, says Zurdo. The CGPJ speaks of confusion (duplicate regulations) and legal insecurity. “And jurisdictional disputes”, adds the general director of ANA.
Without forgetting that the application will not be even less homogeneous throughout the national territory. “Very to the contrary. It will be applied or not according to the political sign of each region, generating market inequalities between regionsin addition to the legal and competence problems that will be created”.
According to José María Basañez, president of Tecnitasa, “article 150 of the Constitution enables the transfer of powers and competences by the State to the Autonomous Communities. And article 149 lists the exclusive powers of the State, among which there is no housing, precisely because in article 148.3 allusion is made to the transfer of competences in the matter of housing, together with territory and urban planning, to the Autonomous Communities. And all this in relation to article 47 of the Constitution itself, relating to the right to decent and adequate housing, and to the texts of the different Statutes of Autonomy”.
In short, the application of the text as it is configured will bring the following consequences, according to Mikel Echavarren: “It will cause enormous legal uncertainty in residential investment and an avalanche of litigation that our judicial system is not in a position to absorb.”