Paula Carcedo García
PUBLIC LAW DIVISION
Access to housing is currently one of Spain’s most pressing social and legal challenges. A shortage of supply, growing demand and, as an inevitable consequence, soaring purchase prices and rental costs have elevated the issue to the forefront of the public agenda. Against this backdrop, the role of public authorities has become increasingly significant, particularly through administrative law, urban planning and housing policy.
There is little doubt that the public administration has an important role to play in this field, not only in safeguarding the public interest but also in ensuring the proper functioning of the housing market. The real debate, however, is not whether the State should intervene, but where the limits of that intervention should lie. In recent years, a number of legislative measures have been enacted that many regard as excessively protective of tenants, significantly restricting landlords’ rights and, in doing so, affecting the right to private property protected under Article 33 of the Spanish Constitution.
Public authorities intervene directly in the housing sector through a range of legal mechanisms.
The first of these is urban planning, which enables the authorities to regulate land use and determine where, how and to what extent development may take place. Through planning regulations, building permits and administrative authorisations, public authorities influence the supply of housing while ensuring that construction and the use of real estate comply with planning legislation.
However, this form of intervention is not without its drawbacks. Excessively burdensome or lengthy administrative procedures can delay the construction of new housing, thereby exacerbating the very shortage they are intended to address.
The administration also intervenes in relation to specific housing-related issues, such as vacant properties, through incentives and measures designed to bring them back onto the market, and short-term tourist accommodation, the proliferation of which in certain cities has reduced the availability of long-term rental housing and placed further upward pressure on prices. These measures illustrate that housing is not merely a private matter between landlord and tenant but also a question of urban planning, social cohesion and public policy.
One of the most controversial aspects of public intervention concerns the regulation of the rental market and the designation of so-called “stressed housing markets” (zonas tensionadas) under legislation such as the Urban Leases Act (Ley de Arrendamientos Urbanos) and, more recently, Law 12/2023 of 24 May on the Right to Housing.
The latter introduces measures including the designation of stressed housing areas, rent controls, increased obligations for large-scale property owners and tighter restrictions on eviction proceedings.
Although these measures were intended to curb speculation and facilitate access to adequate housing, they may ultimately produce the opposite effect if they are not designed in a proportionate manner. Excessive regulation may discourage investment in residential property, create legal uncertainty and interfere with citizens’ economic freedom. Public intervention must therefore be assessed not only in terms of its social objectives but also in light of its effectiveness and its compatibility with other constitutional rights and principles.
Article 47 of the Spanish Constitution recognises the right to decent and adequate housing. However, this provision is framed as one of the guiding principles of social and economic policy rather than an immediately enforceable individual right, meaning that its effectiveness depends upon legislative development and public policy implementation.
By contrast, Article 33 guarantees the right to private property, albeit subject to its social function. While it is accepted that private property serves a social purpose, it is legitimate to question whether stringent rent controls can be justified solely by invoking that social function. The social function of property undoubtedly allows limitations to be imposed on ownership rights, but any such restrictions must pursue a legitimate public interest and satisfy the constitutional principle of proportionality.
Accordingly, it is open to debate whether strict rent controls can be justified simply by reference to the social function of property. If a measure reduces the supply of housing, makes access to rental accommodation more difficult or disproportionately shifts the burden of public housing policy onto particular categories of property owners, it is difficult to argue that it genuinely serves the public interest it purports to protect.
Useful guidance may be drawn from comparable experiences in other jurisdictions, such as Berlin and San Francisco, where rent control measures introduced in 2020 and 1979 respectively demonstrate that excessive restrictions can produce outcomes contrary to those originally intended.
In Berlin, the so-called Mietendeckel introduced a rent freeze together with maximum rent caps. The measure led to a reduction in the supply of rental housing and was ultimately struck down by the German Federal Constitutional Court on the grounds that the regional legislature lacked the necessary legislative competence.
Similarly, in San Francisco, long-standing rent control legislation succeeded in protecting existing tenants but also reduced the availability of rental accommodation, contributing to higher market prices and making it more difficult for new tenants to access housing.
These examples demonstrate that public intervention in the housing market must be carefully designed. Without complementary measures aimed at increasing housing supply and providing legal certainty, restrictive regulation may ultimately worsen the very shortages it seeks to address.
It should also be remembered that, for many individuals, purchasing residential property for rental purposes represents an important form of investment, savings and long-term financial security. Excessively restrictive or unpredictable regulation may significantly undermine legitimate investment expectations and reduce incentives for property owners to keep homes available on the rental market.
In light of these considerations, there is little doubt that public intervention is necessary. Housing is a basic social need and cannot be left entirely to market forces. Government action is essential to protect vulnerable individuals and prevent abusive market practices and speculation.
That intervention, however, must be carried out without losing sight of private property rights, economic freedom and legal certainty.
The right to housing cannot be realised solely by imposing increasing restrictions on property owners. Rather, it requires a comprehensive public policy combining appropriate regulation with measures to increase housing supply, expand public and affordable housing, introduce targeted tax incentives, encourage public-private partnerships and streamline urban planning procedures.
Experience in other countries demonstrates that rent controls, when implemented in isolation and with excessive rigidity, may reduce housing supply and indirectly contribute to rising market prices. The challenge for administrative law is therefore not to choose between market forces and public intervention, but to design a regulatory framework that is effective, proportionate and predictable—one that reconciles access to housing with respect for constitutional rights and the fundamental principle of legal certainty.
