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

BarcelonaWhen there are just over 48 hours left for Parliament to vote on whether to begin processing the Comuns' proposed law to prohibit speculative housing purchases, the property owners' association Som Habitatge has presented a legal report arguing that the regulation is unconstitutional.

Is the fifth analysis published on the regulation of speculative housing purchase, and the first to show herself opposed 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 at 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 foresee impacting the buying and selling, but rather will regulate what the new owner does with the flat or house. For example, putting it up for rent on the free market.

In the presentation of the report, the secretary general of Som Habitatge, Anna Puigdevall, has criticized that market regulation in 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 solved the problem, but, on the contrary, have increased it", and that "}rent is "more expensive and of lower quality", because the homes in 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 Constitutional Court (TC) or the Council of Statutory Guarantees. Unlike the court, the opinion of this second body is not binding, but it would slow down the processing because it would oblige the Catalan chamber to wait for its report: "We believe that there will be someone," Puigdevall has expressed confidence. On Wednesday, Parliament will vote on whether to process the law by a single reading, that is, to shorten the steps so that it moves forward as soon as possible. From then on, the groups will be able to submit amendments.

The arguments

"It is not acceptable for propositions to condition ex ante [i.e., going forward] who can buy a home, nor to predetermine its mandatory use," warns the executive summary of the report. As Simón explained at a press conference, the proposed law "goes beyond what urban planning law can do: it can qualify land and classify uses, but it goes too far when it affects the structure of the contract and impacts the right to property." 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 umbrella, which demands "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".