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During more than forty years of democracy we have not been able to pass a housing or urban lease law in Spain without throwing things at our heads between political parties or social forces. And this Tuesday, when the Minister council approve the new norm, it will not be less. Its gestation has already been an ordeal for the Government partners themselves, until they a kind of hybrid between interventionist populist measures and tax exemptions which does not bode well when it comes to its practical application, if it comes at all. This time it has been necessary to add to the exacerbated political debate the confrontation (also political) with the Power of attorney, who wanted to carry out a report without great disquisitions on the norm, as almost always in this type of consultative process, but changed it at the last minute to generate even more uncertainty and bring to light the dirty laundry among its own components, some more progressive and others more liberal.

The controversial report of the CGPJ has served, at least, to highlight the legal storm that can be generated when companies and individuals see their right (not fundamental, but right) to private property and to dispose of what is theirs for some reason violated. mayor of the day who forces them to take out for rent, cheap that yes, the empty flats they have and have not used for two years, as long as they have four properties or more (up to ten, which is when the system is even tougher ). All under the threat of paying a increase in the Real Estate Tax (IBI) added to the bloodletting that this tribute is already in itself thanks to the annual catastrophe to which the Government has already accustomed us. I don’t know if there will be many people in Spain with more than four flats in their property (they can always be put under another name), but it is still more difficult to imagine mayors who, full of ideology, have the courage to confront their neighbors in that way and sleep peacefully.

Action on empty floors is just one of the major parts of the standard, along with the limitation of rental income in stressed areas, a proclamation from the most radical left that the PSOE never liked but that has been included in the law, to come into force within 18 months, as long as someone is able to create tables with rental prices that are valid and legally acceptable within that period, something of doubtful reliability and easy to appeal before a judge. only the generous tax breaks those who bet on low-priced rents or do not raise those they have compensate for the legal labyrinth in which rent is put, knowing that tax incentives have never been the best way to make housing or rent cheaper.

The legal monstrosity that has been created, fruit of a political power struggle more than a serene reflection As far as it can go with the legal system and the Constitution in hand, it generates a tremendous number of particular situations that can be appealed for a possible violation of the freedom of individuals and the defense of private property, which will generate another great mountain of demands to add to the judicial collapse that this area is already suffering, with issues such as land clauses, IRPH or urban capital gains. Curiously, there are not many sentences in which the supposed right to decent housing is superimposed as a limit on private property, except for cases of evident injustice in which the “social function” of that legal figure must always yield by constitutional mandate (article 33 of the CE). But that happens above all in public works or environmental issues, more than in housing.

We must not forget that, although international legal philosophy always defends the right of people to lead a life with an acceptable level of well-being, in the Spanish case, it is the Chapter III of Title I of the Constitution the one that contemplates that the Government must ensure that the conditions exist for citizens to have decent housing, with special concern for land management to avoid speculation (article 47 of the CE). But make no mistake, that chapter is among those called “Guiding principles of social and economic policy”, and they do not grant fundamental rights, but rather order the Government to act. Within the heterogeneity of that part of the Constitution and to understand each other, it can be said that the right to housing that some politicians loudly defend is similar to the right we have to a decent pension, which may or may not be, depending on what has been priced.

It cannot be denied that the Executive complies with its obligation to legislate when it approves its housing law. And it is even commendable that attempts are made to stop those who accumulate meaningless empty homes in places where there is a real need to share the land, or take advantage of situations of domination to raise rental income to the point of market abuse. But these are very specific situations that can be legally attacked with fewer twists and turns than the new norm contemplates. When a law is made to compensate for political power rather than to solve the problems of citizens effectively, there is a risk of miss the shot and generate a greater evil than the one you want to stop. Lawyers call it the principle of proportionality.


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