Landlords see the seasonal rental law as unconstitutional: "It legalizes homelessness"

BarcelonaThe landlords' association Som Habitatge, which was created less than a year ago to counterbalance the Sindicat de Llogateres (Tenants' Union), has questioned the constitutionality of the Catalan law that regulates seasonal and room rentals. approved last December by the ParliamentThis legislation, a first in Spain, would be unconstitutional for a number of reasons that the organization outlined this Wednesday at a press conference, based on a report prepared by three professors of civil law. The initiative was approved thanks to votes in favor from the PSC, ERC, Comuns, and CUP parties to prevent the fraudulent use of these temporary rental arrangements to circumvent the rent cap, in effect throughout Spain since March 2024. The legal mechanism for achieving this means that all tenants are subject to the housing law, regardless of the contract's duration (therefore, this also applies to students or workers relocating for work). Furthermore, the total price paid by all tenants in an apartment rented by the room cannot exceed the cap that would apply if the entire apartment were rented. Thus, for the past three months, only vacation or recreational rentals have been exempt, and documentation is required for all such arrangements.

While the Rental Companies Union, the initial driving force behind the regulation, had already warned that it was only a first step because an amendment to the Urban Leases Law would have to be approved in Congress to protect the regulation from the Constitutional Court (TC), the People's Party (PP) announced in December that it would take it to the Administrative Court of Appeals (TAC), considering it a matter of property ownership. With this report, the association seeks to legally endorse that intention.

What do they consider unconstitutional?

Now, Som Habitatge is making this report available to political parties, outlining a series of points that justify the potential unconstitutionality of the law, especially points 5 and 6 of Article 5. These points effectively close off two common ways to circumvent the standard rental regime with temporary contracts and prevent fraudulent extensions—since they introduce the obligation to prove the temporary nature of the rental—and the possibility of entering into new contracts with the same tenant—if a new contract is drawn up, it is considered a permanent rental, unless it is explicitly designated as such. The report states that the approved law considers "substandard housing situations" as housing because, by regulating seasonal and room rentals, it places these arrangements on the same level as permanent residences. "Living permanently in temporary residences or rooms constitutes a form of hidden homelessness that must be avoided by promoting stable housing policies and not by distorting the law," the report concludes. They argue that for a dwelling to be considered as such according to constitutional parameters, it must be a whole, permanent, and stable. To consider as a dwelling where "people live in squalor in rooms on a permanent basis is nothing more than the legalization and protection of homelessness. It is totally unacceptable," explained Professor Sergio Nasarre, Chair of Civil Law. Another argument is that the Urban Leases Law (LAU) establishes mandatory rights only for residential rentals, and not for seasonal or room rentals, because, they say, these cannot be considered "urban buildings or properties." Furthermore, they assert that many court rulings have expressly stated that rooms are not dwellings according to the LAU.

They also warn that the text implies that seasonal rental contracts must be in writing, an element that, according to the report, contravenes the law because it protects "freedom of form" for all lease agreements, including those for housing.

Nasarre also explained that some articles constitute a form of intervention in economic activity within a territorially asymmetrical framework, which, according to the report, contravenes the basic equality of legal positions guaranteed by the Constitution. Ultimately, they also argue that the measures are not proportionate with regard to the interference in private property.

No proposals for the rental market

During the press conference, Som Habitatge did not put forward any alternative proposals to prevent "seasonal rentals from becoming the norm," a measure championed by its new director general, Anna Puigdevall. However, they did propose eliminating property transfer tax for young people or allowing temporary ownership of homes for periods of 10 to 99 years. In the report, they also assert that the price cap has not reduced control over rental costs, "but rather the opposite," although the objective of the cap, according to the law, is "to prevent abusive price increases during periods of high demand or scarcity," which has indeed been achieved, particularly in Barcelona.