This week we echoed the ruling of the Constitutional Court(STC 5514-2023) that resolves the appeal of unconstitutionality filed against the Law on the right to housing.

As a litigator and as I represent large holders (small, medium and large) -let us remember that a man or woman with 10 homes is as large as a SOCIMI with 1,000-, I must say that I am pleased that the High Court has applied a bit of common sense by annulling the procedural requirement imposed on Large Home Owners, which was a real procedural barbarity.

And I add that the precepts declared unconstitutional brought me head over heels for months due to the bad habit that prevails in this country of legislating in the heat of the moment, at the stroke of political heat and without the capacity for regulatory development upon the entry into force of the rule.

A diabolical procedural requirement

A procedural requirement is an action prior to the filing of a lawsuit without which it is not admitted for processing. The Law for the Right to Housing introduced a procedural requirement by amending the Civil Procedure Act, specifically in Article 439 paragraph 6, which can only be described as diabolical, in the legal meaning of the adjective.

In short, it imposed on the large housing holder the obligation, prior to the filing of any action aimed at recovering possession of a dwelling, to prove whether the holder of the dwelling was in a situation of vulnerability. To do so, it was necessary to go to the competent public housing services to request the vulnerability report -when the regulation came into force, nobody, not even the administrations themselves, knew who the competent authorities were-. Now, the perversity of this is that, as large tenants, we were required to collect the consent of the debtor to proceed to analyze the parameters of vulnerability, i.e., you had to collect his signature to proceed to sue him, practically leaving the debtor or occupant himself at the whim of the debtor or occupant, the access to effective judicial protection. Obviously, nobody gave their consent, so we spent months trying to figure out how to move these issues forward and we did so, not free of procedural turbulences, until the criteria were unified at the judicial and administrative level.

Notwithstanding the above, this precept generated tremendous legal uncertainty. Let me explain: as the competent housing services did not reply within the two months established by the law, the law – thank goodness – allowed you to initiate the procedure by proving that, although we did not have the consent of the occupant to analyze his situation of vulnerability, the offer had been made to him. However, no one had foreseen what would happen if, during the procedure, the defendant landed with a vulnerability report issued by the local council, leaving all of us who were brave enough to claim rent literally hanging on to the chair and never free from untimely suspensions for this reason, something that sometimes came at the end of the procedure, after a long judicial process in which thousands of euros in rent were disappearing every month.

Fraud and lack of rigor in the issuance of vulnerability reports

Another of the great workhorses, and it does not hurt me to say it publicly, is that, in city councils with friendly squatting policies -which there are-, such as the one in Barcelona, the rigor when analyzing situations of vulnerability is null and void, because it does not exist. I have lived in my own experience how people who were far, but very far from being vulnerable have been informed as vulnerable, without verifying absolutely nothing, simply based on manifestations of part. It is aberrant.

Fortunately, being such provision null and void, this bureaucratic ordeal prior to the filing of the lawsuit is overcome. That said, when the TC declares a regulation null and void, sometimes it is worse, because our dear Government or Legislator comes back to us with an even worse patch.

Squatting friendly” policies to blame for the housing access drama

I take advantage of this article to address this issue, two years after the Law for the Right to Housing. I can admit that in the year 2012 it might make sense to provide mortgage debtors or tenants in good faith with instruments to restructure their debt or to make payment conditions with creditor banks more flexible in order to remain in possession of their primary residence, especially when Spanish banks were rescued with taxpayers’ money.

However, as they say, all fishermen win in troubled waters. In that maelstrom of dramatic situations in which all the operators (from banks, politicians and also the debtor himself) were partly responsible, there was a call effect to real profiteers who turned these mechanisms of protection of just causes into a parasitic way of life. The squatting we have now is not what it was then. It is authentic criminal squatting and the worst of all is that it is often protected de facto by the negligence of the public authorities.

Believe me, there is a huge housing stock in the hands of SAREB and distressed funds that good citizens cannot access at reasonable prices because they are squatted.

Don’t believe me? Keep these words: “Only for investors” “You can not ask for a mortgage” “Cash payment or alternative forms of financing”. I invite the reader to access idealista, fotocasa or any real estate portal and see the huge amount of apartments at more than reasonable prices, but that only investors can access because they are squatted. Young people who want to access their first home can not opt for these homes because they do not have the cash price, or time, or desire, or legal knowledge for that operation makes sense. On the other hand, in that apartment there is some or some cheeky person living without paying a cent of rent or mortgage.

This is how we are doing.

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