How is regulated and guaranted the right of Housing in Spain and in the European Union?

 This post stems from a thought: 'as Real Estate Agents we must provide you a basic notion about the legal system in housing'. We will describe Spanish and European legal framework in this area.

In Spain the competences in this matter are shared for the four administrations present in the whole country. This means that they are exercised by: Townhalls, Provincies, Autonomous Communities and the Central State. The different adminitrations levels must coordinate to carry out the different policies in this area.

However, when citizens talk about housing they do not take into account all the institutional architecture and  This is the reason why  often, it is only invoked article 47 of the Spanish Constitution, which is as follows: 

'All Spaniards have the right to enjoy decent and adequate housing. The public powers will promote the necessary conditions and will establish the appropiate norms to make effective this right, by regulating the use of land in accordance with the general interest to prevent speculation. The community will participate in the capital gains generated by the urban action of public entities'.

At the beginning the legal provision establishes the right to enjoy a decent home. If you read only until here, it seems that we speak of an 'absolute right' as we will see it is not.  The text authors' oblige the public authorities to promote the necessary legal enforcement to make this right as effective as possible and to regulate its intervention. Finally, public authorities are urged  to fight speculation -a concept that is not judicially delimited- as well as to revert the capital gains to the good of the Community - is supposed will be done through public policies-.

 We will make a few statements:

1. Neither from the strict reproduction of the article, nor from its extensive interpretation, nor from judgments related to the issue we are dealing with, it can be deduced that having a home is neither an Absolute nor a Justiciable right in Spain.

This means that no Administration is obliged to guarantee a home to every citizen resident in Spain. From this obligation absence follows the impossibility of claiming on the courts the execution of a unexistent Constitution provision.

2.  The Constituent Assembly imposed an obligation on the Administration: to develope policies to promote access to the right to housing, such as, for example, the construction of  'protected housing'. However, this policy is open to any ideological orientation of public action predetermined. In fact they established a legal imperative.

3. Article 47 is ambiguous enough to reach a pact between Constitution' authors.   

The citizen focuses his gaze on his/her State. However, it is the EU that monitors the compliance law in each Member State of regular reports and, two courts . The first is EU  Court of Justice  host in Luxembourg. Broadly speaking, this court interprets European law so that it applies equally throughout the EU, establishes case law and can cancel European rules. Secondly, a Member State can be accused on the European Court of Human Rights host in Strasbourg. These two European institutions, as well as, your State Constitutional Court, have an impact on our lives.

To finish we will see the main international treaties that Spain has transposed since 1986 when is starts being a member of the European Communities first and of the EU now:

 1. 1991: the International Covenant on Economic, Social and Cultural Rights (ICESCR) is extended to Article 11 'to guarantee minimum security of tenure'.  

2. 1996: revision of the European Social Charter to ensure: '1. adequate standards of access to housing, 2. preventing and combating social exclusion 3. making housing accessible to the disadvantaged'. The SSC annually obliges each EU Member State to submit a report which is audited.

3. 2000: The Charter of Fundamental Rights of the Union was approved and its article 34.3 of recognises the right to housing. 

4. 2000: more than 400 European cities adopted a declaration according to which public space belongs to everyone whether they have a home or not and assume 'their obligations of solidarity'.

Since 2000, taking into account that the Lisbon Treaty was not ratified, no document has been adopted with legal obligations in housing in the EU. Attention: this does not mean that European citizens are unprotected: national and European courts continue to issue judgments and establish legal precedents.

We hope that helped you to build a comprehensive vision on the topic.