Constitutional Court hits multi-million-dollar claims for the closure of tourist apartments

BarcelonaThe Constitutional Court's (TC) blow to the owners of tourist apartments in Catalonia. The fine print of the ruling that endorses The government decree regulating tourist accommodation has severely affected the expectations of the sector, which had already raised property claims in the Generalitat (Catalan Government) for €4.28 billion. In the ruling—which includes a dissenting opinion signed by two judges—the high court overturns the arguments that the owners of tourist apartments had previously put forward to defend these compensations.

Advised by the Association of Tourist Apartments of Barcelona (Apartur), the owners of tourist apartments in the Barcelona area had argued that the Generalitat (Catalan Government) should compensate them because, with the decree that will allow the closure of all tourist apartments in the Catalan capital within five years, they were being "expropriated" by an expropriator. Now the court's ruling calls that argument into question.

"The possibility of using the home for tourist use is not one of the powers without which the right of ownership over the home becomes unrecognizable," the judges emphasize. They conclude, ultimately, that the loss of a tourist license does not constitute expropriation, since the property remains in the owner's hands and that the owner maintains other options such as use as a personal residence, rental as a primary residence, or eventual non-residential uses.

Therefore, the judges argue, "this restrictive regime on the tourist use of homes does not constitute a suppression of the right of ownership over them, but rather a delimitation of a specific aspect of their content that does not make them disappear or render them unrecognizable." "The constitutional coverage of the right to private property does not extend to the simple expectations that a patrimonially advantageous legal regulation or an objective situation not incorporated into the personal assets of specific individuals will remain unchanged," the TC judges add.

The ruling also endorses the method provided for in the Catalan government decree to compensate owners of tourist apartments, which is the five-year moratorium—extendable to ten in some cases—which means that these types of homes cannot be removed until 2028. "This provision considerably reduces the property impact of the regulatory change," the ruling states, which even considers that during this time they will enjoy "limited jurisdiction" because no new tourist apartments will be opened.

The verdict, however, was not unanimous in the full court. Judges Enrique Arnaldo and Concepción Espejel issued a harsh dissenting opinion with their colleagues in which they criticized the court's "somewhat obscure" denial of the existence of an expropriation. They also consider that the ruling does not analyze whether it is constitutionally justified for the decree law to impact the assets of some owners—those who use their apartment as tourist accommodation—and not the rest.

Pending response

Despite the initial setback represented by the ruling—which Apartur's legal services are currently reviewing—sources from the tourist apartment association emphasize that "in any case" they will continue with all the ongoing legal actions. That is, the property claim they have filed with the Generalitat (Catalan government)—and to which the executive branch must respond in the coming weeks—as well as the European route, through which they have already filed a complaint with the European Commission.

Two weeks ago, when the Constitutional Court's verdict against the appeal filed by the People's Party (PP) was announced and before the fine print of the ruling was revealed, the mayor of Barcelona, ​​​​Jaume Collboni, expressed his "satisfaction" with the court's endorsement of the decree with which he intends to close all tourist apartments. "Changing the rules of the game is not only positive and politically possible, but it is also completely legal and constitutional," he argued.