Responses of regional governments in Spain to the housing emergency and exclusion : The social function of housing

December 2015

By Sonia Olea Ferreras, Advocacy Team - Caritas Spain / Housing Rights Expert Group member - FEANTSA

I. Overview of the current situation of housing emergency and exclusion

Since 2007 there has been much study and analysis of the dreadful housing emergency that we have been experiencing in Spain. These figures illustrate the broader picture that speaks of hundreds of thousands of people who have no access to — or who used to have but have now lost — decent, adequate housing:[1]

• 21.6% of people living in Spain are below the poverty-risk threshold (National Survey of Living Conditions 2013).

• Over 30,000 people are living on the streets (Federation of Entities Working with Homeless People, fePsh).
• In the city of Barcelona (2014 count) the number of people (adults and children) living in urban settlements has increased by 162.3%.
• 1,447,880 families living in slum housing (latest Census, 2001).
• In 2013, 3.3 % of people were living in overcrowded conditions (Seventh FOESSA report, 2014).
• In Spain, 6,812,200 new homes were built between 1991 and 2007, of which only 14.5% (989,018) were subject to any official protection system (Sixth FOESSA report, 2008).
• In Spain, 3,443,365 homes are currently unoccupied, of which 13,504 are officially protected, while 332,529 people are registered as having applied for public housing (Population and Housing Census, 2011).
• 9.2% of Spanish households cannot cover the costs of maintaining their main (National Survey on Living Conditions, 2013).
• Between 2008 and 2013 there were more than 500,000 evictions of people and families in Spain[2].

The office of the United Nations Special Rapporteur on Adequate Housing summarized the situation in Spain (Kothari, 2008; Rolnik, 2012):

• The provisional housing system in Spain is organized through economic mechanisms that are fixed by the market: housing is an investment asset (there are therefore sufficient homes).
• Spanish housing policy has turned its back on the right to decent, adequate housing.

II. The national government’s response to the situation

In 2012, through Royal Legislative Decrees 6/2012, of 9 March, on urgent measures to protect mortgage defaulters without resources, and 27/2012, of 15 November, on urgent measures to strengthen the protection of mortgage defaulters, the Spanish government had to address situations of people being turned out onto the street on a daily basis (including old people, children, those with no alternative accommodation etc.), illnesses derived from the stress caused by these compulsory evictions, and even losses of life. The measures included in these decrees are subsumed within Act 1/2013, of 14 May, on measures to protect mortgage defaulters, restructure debt and social renting[3]. Let us draw attention to three of these measures:

• Moratorium on mortgage evictions for two years and only in means-tested cases (in terms of income, the number of members living in the family unit, age of the members, etc).
• Setting up the Code of Best Practices: whereby the banks may voluntarily adopt affordable formulas to deal with mortgage defaulting (restructuring debt, splitting it up and, in some cases, payment in kind).
  
  • Royal Decree 1/2015, of 27 February, on the second-chance mechanism, financial-burden reduction and other social measures makes procedures more flexible, adds new access options to the Code of Best Practices and extends the moratorium until 2017 (and increases the number of people who can apply).
• Setting up the Social Housing Fund: whereby banks should make more than 6,000 homes all over Spain available for evicted persons and families[4]: 1,465 homes had been allocated by February 2015.

What, though, is the actual situation that we have been seeing in recent years (i.e., with the government measures described now in force)?

• 18,749 evictions between 1 April and 30 June 2014, i.e. 3.7% more than in the same period the previous year (General Council of the Judiciary).
• In the first quarter of 2015 there were 18,869 evictions, i.e., 2.1% more than in 2014 (General Council of the Judiciary).

The EU Court of Justice has found against Spain on two occasions for infringing the rights of Spanish people as consumers in the access and sustenance of decent, adequate housing:                                              

• Aziz case: Court of Justice of the European Union (CJEU) decision of 14 March 2013 [5]                                                                                      
• Hidalgo Rueda et al. case: Court of Justice of the European Union (CJEU) decision of 21 January 2015 [6]

The European Court of Human Rights has ordered twice to freeze three eviction cases for which no alternative accommodation had been proposed based on Articles 3 and 8 of the European Convention on Human Rights :

• Salt (Girona, Catalonia) Ap. 62688/13 Ceesay Ceesay and Others v. Spain (15.10.2013) [7]
• Cañada Real (Madrid) Ap. 3537/13 Raji and Others v. Spain (31.01.2013) [8]
• IVIMA (Madrid) Ap. 77842/12 A.M.B and Others v. Spain (12.12.2012) [9]

III. Specific reference to the regions of Andalusia, Navarre, Canary Islands, Catalonia and the Basque Region in the regulatory development of measures to address the situation of housing emergency and exclusion

Let us now look at two charts: the first is a timeline of the emergency regulations implemented at the regional level (leaving aside for the time being any analysis of the current legislation on housing or that which in many cases “freezes” or amends the implementation of these measures); and the second to enable the reader to see these measures grouped together in a simple, graphic form.

Chart 1. Timeline of regional-government regulations
 

 
The decision by the Spanish Constitutional Court of 14 May 2015,  declared some of the articles of Legislative Decree 6/2013, of 9 April, on measures to assure compliance with the social function of housing in Andalusia, to be unconstitutional. We should note, however (particularly considering the second chart), that these numbers represent the expropriation of dwellings that meet the criteria set out in the legislation: the properties must be held by ‘legal personalities’ – that is banks, rather than individual landlords; the dwellings must be vacant due to the eviction of people who had been unable to make their mortgage payments, which has been declared as being unconstitutional. This is also the case with legislation that has been enacted by the autonomous regions of Navarre and the Canary against which the Spanish government has appealed over the last two years.

The essential reasoning for this legislation having been found unconstitutional is that regional legislation constitutes a significant obstacle for the effectiveness of economic and political measures previously established by the national government (in this case Act 1/2013), because it regulates a material ambit that is governed at the national level – mortgage evictions – and undermines the competencies of the state (general economic system) under s. 149.1.13 Spanish Constitution.
 

Chart 2. Measures to address the housing emergency and exclusion (2013–2015)
 

 
The purpose of this second chart is to show the different measures that regional governments in Spain have been trying to bring about (rather than describing each specific regulation in detail) so that they can be compared with the proposals made at the national level. As we can see, the philosophies in these two ambits are very different:

• housing as an economic asset (national ambit)
• housing as a human right with a social function (regional ambit).

We believe that any initiative that is not borne out of the objective to end the suffering of hundreds of thousands of people who cannot access or hold on to decent housing, afford its energy cost or enjoy their right to the environment (the city, the town, the village, etc.) will tend to perpetuate the view in Spain that housing is an economic investment model and merely a product to be consumed (and its access and enjoyment is therefore not universal). This is particularly relevant when the Spanish government is implementing partial, temporary measures that fail to embark in any depth on legislative changes that might facilitate the real existence of internal legal resources to assure and maintain access to this human right.

This is certainly in stark contrast to the position taken by the UN Committee on Economic, Social and Cultural Rights (Communication 2/2014) only a few weeks ago in its decision against the Spanish government,[10] referring to the lack of effective access to the courts to protect the right to adequate housing: “The right to housing must be guaranteed for all persons, regardless of their income or access to economic resources, and partner states must take every step necessary in order for this right to be fully realised.”
 

[10] http://www.ohchr.org/EN/HRBodies/CESCR/Pages/TableJurisprudence.aspx