Law 12/2023, of May 24, for the right to housing (Ley para el Derecho de acceso a la Vivienda). Click here to see the law .
I.- GENERAL ASPECTS
The Law for the Right to Housing entered into force on May 26, 2023 after being published in the Official State Gazette (BOE). Despite the criticism received from the real estate sector, the law brings with it regulations on evictions, liens on vacant homes, a cap on rent updates and new tax incentives for owners.
Reference index will be created that will replace the CPI in the calculation of income. The main controversy centers on the figure of the “big fork” and on leaving the creation of tense rental areas in the hands of the Autonomous Communities (CCAA), which will imply control of the rental market.
INTERVENTIONIST NATURE OF THE STATE
This law becomes the first state regulation that regulates the right to housing since the approval of the Constitution.
It is a clearly interventionist law of the Central State on the regions and Autonomous Communities, since it limits and conditions powers at the real estate and urban level that, to date, corresponded to the different regions. Thus, the law establishes jurisdictional rules to be applied by the Autonomous Communities, which have full jurisdiction in housing matters.
It also supposes a clear intervention of the public powers in the private sphere since it interferes, limits and conditions the private legal relations between individuals related to both the right to contract and the right to property.
WHAT ARE THE OBJECTIVES OF THIS LAW?
The objectives of this law are:
- Regulate the rights and duties of citizens in relation to housing
- Facilitate access to decent and adequate housing for people with economic difficulties, guarantee the functionality and safety of homes
- Define state housing planning and programming
- Regulate the legal regime of public housing parks
- Promote the development of housing typologies appropriate to the different forms of coexistence
- Improve protection in housing purchase and lease operations, among others.
WHAT MEASURES DOES THE LAW INTRODUCE?
Some of the notable measures of the law that will take effect immediately are:
- The obligation of owners and intermediaries to provide data on the dwellings and their owners
- The creation of a new reference index to update income
- The possibility of taxing empty houses.
However, other measures, such as the ceiling on rents and stressed areas, will be subject to the declaration of the CCAA and will require additional procedures and conditions.
In summary, the Law for the Right to Housing seeks to regulate various aspects related to housing, from the rights of citizens to the creation of affordable housing public parks.
Although it has generated controversy, it marks a milestone as it is the first state law to regulate this constitutional right, with a marked interventionist nature.
WHAT MEASURES ARE IN FORCE?
The measures of the Housing Law that are already in force are the following:
- Limit to updating rental income : Since March 2022, the Consumer Price Index (CPI) ceased to be the so-called “Reference Index in updating rents”.
Until December 31, 2023, the annual rent increase in existing rental agreements cannot exceed 2%. In 2024, this limit will be increased to 3%.
Starting in 2025, a new Rental Index will be applied, which will be published every year by the Spanish public administration.
- Minimum information in housing purchase and rental operations: Intermediaries must provide detailed information about the properties and their owners in purchase and rental operations. This includes economic conditions, occupation license or habitability certificate, essential characteristics of the home and the building, as well as the identification of the seller or landlord. Non-compliance may lead to economic sanctions.
We can find detailed information on the obligation to inform the buyer or tenant in our specialized article EFFECTS OF THE LAW OF THE RIGHT TO HOUSING ON THE PROCESS OF PURCHASE AND SALE IN SPAIN .
- Extraordinary extensions of rental contracts for the vulnerable: A mandatory one-year extension is established for rental contracts when the tenant demonstrates a situation of social and economic vulnerability, and the landlord is a large homeowner.
- IBI surcharge for empty homes : A surcharge is implemented on the Real Estate Tax (IBI) for homes that are unoccupied for at least two years. This surcharge can go up to 150% and is applied to properties with a minimum of four dwellings per owner, unless there are justified causes of temporary vacancy.
These measures seek to regulate the housing market, control rental prices, improve transparency in transactions and encourage the occupation of unoccupied homes.
THE “PROTECTED HOUSING” OR “INCETIVATED”
In addition to the previously mentioned measures, the Housing Law includes other provisions related to the “protected” or “incentivized” housing regime, electronic payments of rental income, the figure of the large homeowner, the expenses of real estate management and changes in evictions, foreclosures and real estate auctions.
With respect to “Protected Housing”, it is established that these homes will be subject to a permanent public protection regime, except for justified exceptions. In addition, its sale or rental will require the prior authorization of the corresponding Autonomous Community.
Regarding “incentivized affordable housing”, the public powers are allowed to promote the existence of these homes and apply price limits to guarantee access for people with economic difficulties.
THE PAYMENT OF THE RENT “IN CASH” OR “CASH” IS OVER
The obligation is established that rental income payments are made mainly through electronic means , except in cases where one of the parties does not have access to these means, in which case payment in cash will be allowed in the leased home. .
WHO IS CONSIDERED AS A “LARGE HOLDER” OF HOUSES?
The figure of the large homeowner is defined as a natural or legal person who owns more than 10 urban properties or a constructed area of more than 1,500 m2 for residential use .
However, this definition can be adapted in the declarations of stressed residential market environments , allowing the inclusion of owners of 5 or more urban properties in those areas , subject to the declaration of the competent Administration, that is, the autonomous communities.
WHO WILL PAY THE REAL ESTATE AGENCY FEES?
It is established that the expenses of real estate management and formalization of the contract must be assumed by the lessor.
EVICTIONS. GREATER PROTECTION OF THE TENANT IN A SITUATION OF VULNERABILITY
The law introduces significant changes in eviction procedures, foreclosures and property auctions in situations of vulnerability:
- Protection is extended to the occupant of the dwelling in a situation of vulnerability in eviction and foreclosure proceedings.
- A system of suspension of eviction proceedings is established for a period of 2 months for natural persons and 4 months for legal persons.
- Additional requirements are also established for the admissibility of the claim in cases where the plaintiff is a large homeowner and the home is the habitual home of the occupant in a situation of economic vulnerability.
- In real estate auctions, the performer is required to demonstrate whether the occupant is in a situation of economic vulnerability and that a conciliation or mediation process has been followed between the parties.
These measures seek to provide greater protection to occupants of homes in vulnerable situations and regulate various aspects related to subsidized housing and the real estate market in general.
DECLARATION OF “TENSIONED” RESIDENTIAL MARKET AREA
The Housing Law contemplates measures that are pending the declaration of stressed residential market areas. These measures will be applied once an area has been declared as such and a specific plan has been drawn up to correct the imbalances observed. Some of these measures are the following:
- Current contracts in areas declared under stress will maintain the increase limits established at a general level: 2% in 2023, 3% in 2024 and from 2025 the new rental reference index.
- In stressed areas, tenants may request an extraordinary extension of up to 3 years once the initial term of the contract has concluded, as long as certain requirements are met. The landlord will be obliged to accept this extension, unless other terms have been agreed or the home is needed for personal use.
- In the new contracts signed in areas declared stressed, specific conditions will apply depending on whether the lessor is a small owner or a large holder. In the case of small owners, the agreed rent may not exceed the last rent of the previous contract, plus a maximum increase of 10% in specific cases. For large holders, the rent will be limited by the previous contract or by the maximum price limit established according to the reference price indices.
- In stressed areas, the parties may agree that certain general expenses related to the maintenance of the property are the responsibility of the lessee. However, if this clause had not been included in the previous contract, it will not be reflected in the new contract.
- A new reference index will be established for the annual updating of housing lease contracts, which will be defined by the National Institute of Statistics (INE) before December 31, 2024. This new index will serve as a reference limit to avoid increases disproportionate in the rent of the rental contracts.
- The tax deductions for landlords will take effect on January 1, 2024. Tax reductions are established both for the net rental yield in general and for specific situations, such as rent reductions in contracts in stressed areas or renting to young people in those areas. These tax reductions will only be applied in areas declared as stressed residential markets.
It is important to highlight that these measures are subject to the declaration of stressed residential market areas and the approval of the corresponding specific plans.
Second final provision. Tax incentives applicable in the Personal Income Tax to the leases of real estate for housing.
With effect for housing lease contracts entered into from the entry into force of this law, the following modifications are introduced in Law 35/2006, of November 28, on Personal Income Tax and modification part of the laws on Corporation Tax, Non-Resident Income and Wealth:
One. Section 2 of article 23 is amended, which is worded as follows:
“2. In the cases of leasing real estate for housing, the positive net yield calculated in accordance with the provisions of the previous section, will be reduced:
a) By 90 percent when the same landlord has formalized a new lease on a home located in an area with a stressed residential market , in which the initial rent has been reduced by more than 5 percent in relation to with the last rent of the previous rental contract for the same home, once the annual update clause of the previous contract has been applied, if applicable.
b) By 70 percent when the requirements indicated in letter a) above are not met, any of the following circumstances occur:
1.º That the taxpayer had rented the home for the first time, provided that it is located in a stressed residential market area and the tenant is between 18 and 35 years of age. When there are several tenants of the same home, this reduction will be applied to the part of the net yield that proportionally corresponds to the tenants who meet the requirements set forth in this letter.
2nd When the lessee is a Public Administration or non-profit entity to which the special regime regulated in Title II of Law 49/2002, of December 23, on the tax regime of non-profit entities is applicable. and tax incentives for patronage, which allocates housing to social rental with a monthly income lower than that established in the rental aid program of the state housing plan, or to accommodation for people in a situation of economic vulnerability referred to Law 19/2021, of December 20, which establishes the minimum vital income, or when the home is covered by a public housing or qualification program by virtue of which the competent Administration establishes a limitation on rental income .
c) By 60 percent when, not meeting the requirements of the previous letters, the dwelling had been the subject of a rehabilitation action in the terms provided in section 1 of article 41 of the Tax Regulation that would have ended in two years. prior to the date of the lease agreement.
d) In 50 percent , in any other case.
The indicated requirements must be met at the time of entering into the lease, the reduction being applicable as long as they continue to be met.
These reductions will only be applicable to the net positive returns that have been calculated by the taxpayer in a self-assessment submitted before a data verification, limited verification or inspection procedure has been initiated that includes in its purpose the verification of such returns. .
In no case will the reductions be applicable with respect to the part of the positive net income derived from income not included or from expenses improperly deducted in the self-assessment of the taxpayer and that are regularized in any of the procedures mentioned in the previous paragraph, even when those circumstances have been declared or accepted by the taxpayer during the processing of the procedure. Neither will the reductions be applicable in relation to those lease contracts that fail to comply with the provisions of section 6 of article 17 of the Urban Leasing Law.
The positive net income from real estate capital derived from housing lease contracts entered into prior to the entry into force of Law 12/2023 , of May 24, for the right to housing, will be subject to the reduction provided for in section 2 of article 23 of this law in its current wording as of December 31, 2021.”
In the case of properties for residential use that are permanently unoccupied, the municipalities may require a surcharge of the IBI of up to 50 percent of the net amount of the tax.
For these purposes, the property that remains unoccupied, continuously and without justified cause, for a period of more than two years , in accordance with the requirements, means of evidence and procedure established by the tax ordinance, will be considered a permanently unoccupied property, and belong to owners of four or more properties for residential use.
The surcharge may be up to 100 percent of the net amount of the tax when the period of vacancy is greater than three years , and may be modulated based on the period of vacancy.
In addition, the municipalities may increase the corresponding surcharge percentage in accordance with the aforementioned by up to 50 additional percentage points in the case of properties belonging to owners of two or more properties for residential use that are unoccupied in the same municipal area.
In any case, the following causes will be considered justified :
- temporary transfer for work or training reasons,
- change of address due to dependency or health reasons or social emergency,
- properties intended for second residence housing uses with a maximum of four years of continuous vacancy,
- properties subject to work or rehabilitation actions, or other circumstances that make their effective occupation impossible,
- that the home is being the subject of a lawsuit or cause pending judicial or administrative resolution that prevents its use and disposal or that it is real estate whose owners, under market conditions, offer for sale, with a maximum of one year in this situation, or for rent, with a maximum of six months in this situation.
The surcharge, which will be required of the taxpayers of this tax, will accrue on December 31 and will be settled annually by the municipalities, once the vacancy of the property has been verified on that date, together with the administrative act by which it is declared. .
The municipal declaration as permanently unoccupied property will require the prior hearing of the taxable person and the accreditation by the City Council of the indications of vacancy, to be regulated in said ordinance, within which may appear those related to the data of the municipal register, as well as as the consumption of supply services.»
Allocate adequate and sufficient land for productive uses and for residential use, reserving in any case a part provided for housing subject to a public protection regime that, at least, allows establishing its maximum price for sale, rental or other forms of access to housing, such as the surface right or the administrative concession.
This reserve will be determined by the legislation on territorial and urban planning or, in accordance with it, by the planning instruments, it will guarantee a distribution of its location that is respectful of the principle of social cohesion and will include, as a minimum, the land necessary to carry out the 40 percent of the residential buildable area provided for by urban planning on rural land that will be included in new urbanization actions and 20 percent on urbanized land that must undergo urbanization reform or renewal actions.