Gonzalo Rubio Hernández-Sampelayo: Property and Constitution



The Government has begun processing the “State Law for the Right to Housing”, which, according to the second vice president, would impose quantitative limits on the rental price.

The details of the proposed regulation have not yet been released. The only document provided is the corresponding public consultation, the basis of which consists of the citation of Article 47 of the Constitution (EC), according to which “all Spaniards have the right to enjoy a decent and adequate home.”

From a legal perspective, the mere reference to Article 47 of the Constitution does not serve to justify a restriction of the right to real estate as announced.

The right to housing is, strictly speaking, a “guiding principle of social and economic policy” whose functionality is “[informar] positive legislation, judicial practice and the actions of the public powers ”(article 53.3 CE). Despite its undeniable relevance, it is not a title by itself capable of modulating the content of the property, which does enjoy the nature of a fundamental right and «[vincula] to all public powers ”(article 53.1 CE).

It is desirable that the laws establish measures to promote access by citizens to a home (as also contemplated by the merited articles 47 and 53.3 CE), just as it is inexcusable that the regulation that is approved for this purpose respects all constitutional requirements.

A limiting regulation of the rental price is, as we say, a restriction of the right to real estate and, as such, must be adapted to its “social function” (Article 33 EC). This means that the legislator must prove the existence of a real and specific social need, the effective realization of which requires the limiting intervention of the right to property. There is nothing new in this maxim, which can be explained in Rousseau’s words: “Every man naturally has the right to everything that is necessary for him; but the positive act that makes him the owner of some good excludes him from all the rest ».

Additionally, the content of the regulation must respect the “essential content” of the right to property (article 53.1 CE). An emptying of the right or its economic utility would not be admissible – this is relevant to the extent that the free formation of the rental price is intended to be outlawed – “because in such a case it would not be possible to speak of a general regulation of the right, but of a deprivation or suppression of the right. same […] not tolerated by the constitutional norm, unless there is the corresponding compensation “(Constitutional Court ruling 227/1988).

The above requirements will have to come to life in the standard approval procedure. The Government will have to justify its observance, the advisory bodies verify it and the political opposition scrutinize it. Let us not consider the parliamentary procedure as a mere formality, since it is there where the constitutional prescriptions should shine and guide the legislator, because, according to Constant, “what preserves us from arbitrariness is the observance of forms.”

Gonzalo Rubio Hernández-Sampelayo. lawyer

Gonzalo Rubio Hernández-SampelayoGonzalo Rubio Hernández-Sampelayo

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