The owners counterattack: they assure that the speculative purchase law is unconstitutional

BarcelonaWhen there are just over 48 hours left for Parliament to vote the Comuns' proposal for a law to ban speculative housing purchases, the property owners' association Som Habitatge has presented a legal report arguing that the norm is unconstitutional.

Is the fifth analysis published on the regulation of speculative housing purchase, and the first one to show opposition to it. It was drafted by the professor of civil law at the Rovira i Virgili University (URV) and housing expert Sergio Nassarre Aznar and the professor of the same university Héctor Simón Moreno.

Comuns proposes to change the urban planning law so that town councils in municipalities with tense areas can determine what use housing should have through municipal plans. Therefore, the rule does not intend to affect sales, but will regulate what the new owner does with the flat or house. For example, putting it up for rent on the open market.

In the presentation of the report, the secretary general of Som Habitatge, Anna Puigdevall, has criticized that the market regulation of recent years leads to a "very big contradiction". "The State does not invest. If we prohibit private investment, we have a very serious problem: who will generate the supply we need?", he asked. He also said that the rules "have not resolved the problem, but, on the contrary, have increased it", and that rent is "more expensive and of lower quality", because the homes in the new contracts are smaller.

Puigdevall explained that from Som Habitatge they are having open conversations with political groups so that they take the text to the Council of Statutory Guarantees, a step that would paralyze Wednesday's vote: "We believe that there will be someone," he expressed confidence. Afterwards, the groups that wish to appeal the rule will have to do so before the Constitutional Court (TC).

The arguments

"It is not acceptable for propositions to condition ex ante [i.e., going forward] who can buy a home, nor predetermine its mandatory use," warns the executive summary of the report. As Simón explained at a press conference, the bill "goes beyond what urban planning law can do: it can qualify land and classify uses, but it exceeds itself when it affects the contract structure and impacts property rights." The rule would affect not only sales, but also inheritances and donations.

The authors not only appeal to Spanish law, but also resort to the European framework, which requires "a fair balance between private property and intervention in the public interest". Beyond that, Nassarre and Simón warn that prohibiting speculative purchasing, on the one hand, leads to significant territorial differences within the same market – "it allows neighboring municipalities to apply radically different restrictions," they point out – and, on the other hand, poses an "indirect discrimination against non-Spanish citizens".

Finally, the report assures that the Comuns' proposal violates freedom of enterprise because "it is restricting real estate activity to a single business".