42 aniversari de la constitució espanyola
Misc 06/12/2020

Housing: Having a roof, a poorly protected right with changing policies

Natàlia Vila
2 min
Habitatge Tenir un sostre: un dret poc protegit i amb polítiques  pendulars segons el color dels governs Poca contundència a la Constitució?

The effects of the pandemic have shown that article 47 of the Spanish Constitution - which states that "all Spaniards have the right to decent and adequate housing" - has not achieved its goal. A fact that the previous crisis, the brick crisis of 2008, had already made clear.

Why is it so difficult to guarantee this right? The experts in law and housing consulted by the ARA coincide in highlighting a key point: Article 47 is not included in the chapter on "fundamental rights" and, therefore, "does not have special protection" over the rest. Thus, according to its wording, it can come into collision – and it does – with other rights, such as private property, which enjoys the same consideration in the constitutional text. In this, however, Spain is no different from the majority of countries: "There is no country that has completely solved the problem of decent housing. Not even that of homelessness", points out Sergio Nasarre, director of the Unesco chair of URV Housing. "The formality of stating it as a fundamental right and, therefore, making it enforceable before a court of law, occurs only in five or six countries, including Burkina Faso or Ecuador", says this expert.

However, Article 47 is understood as a "guiding principle of social policies". In fact, it specifies that public authorities must promote housing and avoid speculation. To be effective, then, this right needs a normative framework that develops it: the second obstacle it has encountered in the last four decades. There are three state laws (with successive reforms) that have marked the management of housing during this time. The oldest is the mortgage law, which regulates sales. There is also the law on rents or urban leasing law (LAU), and the law that manages the available space, the land law.

While some experts point out that the 1998 reform of this last regulation (Aznar was president) was the one that allowed for the liberalization of land and the subsequent speculative bubble, Nassarre points to the comings and goings of the rest of the regulations. Beyond the changes introduced in 2013 to combat abusive clauses, the mortgage law has remained practically unchanged. On the contrary, "the LAU has been a drama", he assures: "A pendulum law that changed in 1964, in 1985 in favor of the landlord [the owner], in 1994 when balance was sought, in 2013 again in favor of the landlord, in 2015 in favor of the tenant, in 2018 there was a failed reform and, finally, in 2019 more protection was given to the tenant”. "None of these reforms has made the rental rate rise, nor has it satisfied the parties", he says.

The transfer of competences in housing has allowed, notable advances in recent years in Catalonia, such as Law 24/2015 or the decree that regulates the price of rents, of this same 2020. Both measures, pioneers in the State, have been pushed and led by social pressure and the strength that social movements have acquired during the last decade, as a result of the 2008 crisis. However, these measures have not been enough to cover the lack of government housing. All in all, the figures - among which the dozens of daily evictions, or the rise of subleases, stand out - insist on verifying that Article 47 is still a utopia for too many citizens.