Data protection will limit access to the register of large holders

BarcelonaIn the last week of October, the Government and the Commons unblocked the implementation of the registry of large property owners, a commitment signed in the spring during negotiations for supplementary budget allocations. All legal entities and individuals with five or more properties will have to register: those who fail to do so will face fines of between €9,000 and €90,000, as stipulated by the housing law. The expectation was that the registry –which already existed in the previous legislature and which the Government reactivated in February– was to be approved in November. With the end of the year just around the corner, this has not yet happened, and, moreover, the executive has had to make last-minute changes to the draft decree that creates it. This was due to a report from the Catalan Data Protection Authority (APDCAT) that warns of the limits that the right to privacy of large property owners imposes on the registry.

The agreement reached by the Catalan executive and Comuns envisioned a "publicly accessible" registry with a very specific purpose: that anyone who entered the ID or tax identification number of a property owner could check whether or not they are a large property owner, in order to verify their compliance with the obligations imposed by law, for example, regarding [specific requirements]. This will be possible in the case of legal entities but not individuals. In a report dated December 4, which ARA has accessed, the APDCAT informed the Catalan executive that an "indiscriminate" consultation of this data with respect to individuals is not possible.

The Catalan Data Protection Authority (APDCAT) issued this statement regarding a draft decree in which the Government already conditioned access to information on the existence of a legitimate interest—and which, therefore, reduced the absolute transparency to which it had initially committed with the Comuns (the Catalan left-wing coalition). In this regard, sources from the Ministry of Territory emphasize that the regulations on administrative procedure and data protection "do not allow for the automatic transfer of data." "And this article only reiterates what these regulations already state, for the purpose of informing the public," they add.

"Formalized procedure"

In the report, the Catalan Data Protection Authority (APDCAT) recommended that the Government further strengthen this limit: "The objective of consulting the register of elderly landlords cannot be to obtain the identity of registered individuals for general or indiscriminate purposes, but should be limited to the information strictly necessary for a specific purpose and justified by a legitimate interest (with the consent given)," the report states. The APDCAT also urged that the legitimate interest be demonstrated through a "formalized and documented procedure" before any data is shared, a request that the Catalan Government has incorporated into the new draft decree. This new framework could delay the time it takes a tenant to obtain information about the landlord in contexts where time is of the essence; for example, when looking for an apartment or deciding whether to sign a contract. The Catalan Ministry of Territory and Land (Territori) is aware of this. "We are looking for a system that offers the greatest possible agility in information processing, while also ensuring complete legal certainty and data protection," maintain sources within the department, who also do not specify when the registry is expected to be submitted to the executive council for approval. "It will be as soon as possible," they add.

Legal entities

Where the Catalan Public Data Protection Agency (APDCAT) raises no objections is to the publication of the names of large property owners who are legal entities: the decree stipulates that their list will be published on the Housing Agency's website, "indicating only their company name and tax identification number (NIF)." To be included on this list, it is sufficient to own one property in Catalonia (even if the other four are located elsewhere in Spain). Furthermore, local authorities, public entities, and the Catalan Tax Agency will have their own access point to exercise "their powers." For example, those related to property transfer tax on real estate purchases. where they pay 20%, an increase that the Government also agreed with Comuns.

However, despite not falling within the scope of data protection—which is an exclusive right of natural persons, not legal entities—in a previous report, the Catalan Data Protection Authority (APDCAT) warned the Catalan Government that it could also encounter legal problems if it chooses to publish the list of names of large property holders that are companies. In this regard, the report reminded the Government that a December 2023 ruling by the High Court of Justice of Catalonia established that, from the perspective of public administration transparency, "providing the names of large corporate property holders to an unrelated third party is disproportionate." This is a precedent that the real estate sector could use to challenge the decree.

The percentages

Until now, the lack of an official registry has made it difficult to identify who the major property owners are in Catalonia. The report Housing structure and concentration in the city of BarcelonaThe Barcelona Metropolitan Housing Observatory does provide figures. According to this study, compiled using 2023 data, among owners of five or more properties, "the properties are divided almost equally" between individuals and companies: individuals represent 45.8%, and legal entities, 54.2% (42.6%). These percentages are based on the Barcelona City Council's land registry. One of the most interesting pieces of data collected by this observatory is found in another report. There are nine mega-owners, who are individuals who own a total of 1,200 properties. However, if we take the Barcelona area as a reference, legal entities gain ground: they represent 67.4% of large owners of 5 or more rental properties, ahead of individuals, who represent 32.6%, according to another study by the Metropolitan Housing Observatory.