Spain: A draft law on the right to housing without a human rights approach

Sonia Olea Ferreras

Human Rights Officer

Key points of the Communication to the Government of Spain from the United Nations Special Rapporteurs on Adequate Housing and on Extreme Poverty and Human Rights in reference to the Draft Law on the Right to Housing in process since February 2022 in the Spanish Parliament. [1]

The United Nations proposes to the Spanish Government seven points for improvement to be introduced in its Draft Law on the Right to Housing:

- No. 1: The right to housing should be enshrined in law as a human right.

- No. 2: Equal treatment and non-discrimination.

- No. 3: Protection of vulnerable groups.

- No. 4: Ensure that the right to housing is also enforceable.

- No. 5: Protection of vulnerable people from evictions.

- No. 6: Set clear targets to progressively expand the very limited stock of social housing.

- No. 7: Improve the rent containment system to cover all rental housing in stressed markets.

1.- The right to adequate housing: a human right, a subjective right, a justiciable right (No. 1 and 4)

The United Nations Special rapporteurs, Balakrishnan Rajagopal and Olivier De Shutter, following the multiple recommendations and condemnatory rulings [2] [3] that the Spanish State has received in recent years from the United Nations, once again insist on two fundamental aspects: 

• The universality of the human right to adequate housing, and the need for the new law not to limit this right only to people who are citizens of the Spanish state. This is also in line with the principle of non-discrimination in access to housing.
• The justiciability of the right/subjective right: without access to justice and effective remedies, the human right to adequate housing is violated. The draft law does not guarantee vulnerable individuals and families’ access to adequate housing (in the form of public or social housing, or social benefits that facilitate access to the private market).

In view of this, they make the following proposals for improvement in its articles:

• Change the concept of citizenship throughout the articles of the law for the concept of person.
• Include the international human rights obligations ratified by Spain as a basis for the law itself (not only the Constitution).
• Include the expression: “right to adequate housing.”
• Extend the obligation of States not only to "promote", as the bill says, but also to "protect, respect and fulfil" the right of all persons to housing, as regulated by the treaties signed by Spain.
• It requires the government to enact the guarantee of being able to invoke the right to adequate housing in the courts when administrative or extrajudicial pathways have failed to guarantee access to housing with basic standards of adequacy.
• It also requires the Government to include a general sanctioning regime that defines and specifies non-compliance with this guarantee.

2.-Special protection of persons and families in situations of homelessness (no. 3):

Although in item nº 3 various situations of vulnerability are developed that should be especially protected (people with disabilities, elderly people, women, victims of sexual or gender violence and human trafficking, refugees, migrants, people released from prison or detention, living on the street...) we want to focus on the proposals referring to people in a situation of homelessness as this document was produced for the Housing Rights Watch network . 

In this sense, we highlight the following proposals of the United Nations rapporteurs to be introduced in the Bill:

• To understand and comprehend that the situation of street homelessness entails the violation of several human rights: housing, life, health and safety of the person, as well as the fact that the State has an obligation to immediately protect them. Failure to do so could constitute cruel, degrading and inhuman treatment (Article 7 International Covenant on Civil and Political Rights and Article 3 European Convention on Human Rights).
• Include in the draft law the possibility of access to housing for persons and families experiencing homelessness or at risk of homelessness, within 2 months of their request; being provided with social housing, or housing managed by a public or social welfare organisation on behalf of the State or, finally, the provision of a housing subsidy.

3.- Equal treatment and non-discrimination (no. 2):

With the publication last July 2022 of the Integral Law for Equal Treatment and Non-Discrimination (Law 15/2022 of 12 July), discrimination in relation to housing (both by public entities and private actors) has been included. The United Nations proposes that the language of this new law and the prohibition of real estate harassment and abuse in housing, which it also develops, should be included in the articles of the bill itself.

Also, in reference to the prevention of spatial segregation, and welcoming the fact that the bill includes an increase in the number of subsidised housing and social housing units, they insist on the warning not to build large social housing developments on new land on the outskirts of cities and towns, as well as on the quality of these housing units and their surroundings. To this end, they recommend increasing the percentage of land devoted to social housing in built-up areas to 30%.

4.- Protection of vulnerable persons from evictions (no. 4)

As with points 1 and 3, there have been numerous recommendations and opinions on evictions addressed to the Spanish state in recent years. In this sense, the special rapporteurs make the following proposals to improve the articles of the draft law, with the aim of making applicable UN General Comment No. 7 on adequate housing and evictions and the Guidelines for the Implementation of the Right to Adequate Housing (A/HRC/43/43/43, para. 38) [4]: 

• Prevention: providing affected persons with the necessary financial support from the relevant authorities to enable them to keep vulnerable tenants in their housing. Providing social housing, alternative or emergency accommodation will always be much more expensive.
• Ensuring that the eviction will not lead to harm or risk the rights of the people affected. In particular related to the protection of families and children.
• Ability for courts to order state compensation to homeownership if an eviction is suspended due to lack of housing or alternative or emergency accommodation.
• Legal obligation to establish the time and date of the eviction in the court order.

5.- Urgent measures to increase the public stock of social housing and to control rents for all housing in stressed residential markets (no. 6 and 7): 

In compliance with the fundamental principles of affordability and accessibility to the human right to adequate housing, increasing the stock of social housing in Spain for vulnerable individuals and families is essential; and this is reflected in the draft law.

The recommendation is to clearly define this goal. They propose reaching 15% of social housing by 2040, recommending that the Government include it in the articles that refer to subsidised and incentivised housing.

Also, the rent stabilisation measures, which are also included in the draft bill, are considered insufficient to ensure that housing is affordable for people who depend on the rental market. In addition, they propose that they should not only apply to large landlords but to the whole rental market due to the fact that the Spanish rental market includes a great proportion of small landlords.

Finally, together with the continued expansion of the social housing stock, the regulation of rental prices, they propose  to subsidise housing, to subsidise energy and water so that households spend no more than 39% of disposable income on housing costs. 

Conclusion:

Given these seven essential points, which any public policy based on the human right to housing should contain, Caritas hopes and trusts that the Spanish Government will take them into account, as well as the parliamentary groups that are finalising their work on the approval of amendments. The historic milestone of having a state law on the right to housing together with the guarantee of access and enjoyment of this right for all people, especially the most vulnerable, and its justiciability, would then be very close.

Original Communication: https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=27820