Tag: Constitutional Court

Euskadi Will Be Allowed to Expropriate Homes That Remain Uninhabited for More Than Two Years

2 October 2018

The Constitutional Court endorsed fundamental aspects of the Basque housing law that the PP government appealed in 2016.

The Constitutional Court (TC) has endorsed the ability of the Basque Government (Euskadi) and regional municipalities to proceed with the forced expropriation of homes that remain uninhabited for a period of more than two years without just cause and are located in areas where there is a proven demand for public or social housing. The institutions will have the power to place the properties on the social housing rental market when a need is found in the areas they are located.

“This does not mean that the Government or the municipalities are going to move ahead with a wave of expropriations,” the Basque housing councillor, socialist Iñaki Arriola, stressed. The pronouncement by Spain’s highest court let a decree stand that would permit the forced rental of homes in areas that have remained unoccupied for an extended period and where there is an elevated demand for social housing. It is, said Arriola, a “balance between policies incentivising social housing and punitive measures in the case where properties, such as housing, are not adequately put to use.”

The latest census of empty and uninhabited homes in the Basque territory will be made public tomorrow by the councillor, who has so far declined to cite the figure. The previous report, with data for 2015, noted that there were 86,325 empty dwellings (8.3% of all Basque households). Of these, almost a third (32%) were used as seasonal housing, and the remaining 68% were classified as unoccupied. Of the 58,697 unoccupied homes, more than half (35,647) were not on the market to rent or sell.

Homes will not be considered unoccupied when they are second homes and when their inhabitants are temporarily absent due to relocations stemming for work, health, dependency and social emergency reasons that justify the absence, Arriola said. Before declaring a dwelling unoccupied, the relevant institution must open a file, summon the owners for a hearing and later determine whether the situation merits forcibly placing the property on the social housing market through a temporary expropriation.

The Government of the PP appealed the Basque Housing Law in 2016 before the Constitutional Court, requesting that the court rule that several of the law’s precepts exceeded the regional government’s powers and encroached on the powers of the Spanish state. The Basque law, which establishes the subjective right to dispose of a home, was approved in June 2015 on the initiative of the PSE with the support of EH Bildu and UPyD. The PNV and the PP voted against the measure.

The last census stated that there are 58,697 uninhabited homes in Euskadi, the Basque territory

The appeal by Rajoy’s government was based on the fact that the Basque legislation imposes a new form of regulatory oversight on the right to own property, stating that ownership brings with it the duty to inhabit the residence. The State Attorney challenged 13 articles and several sections, most of which refer to the definition of uninhabited housing and the regional government’s tools for dealing with those unoccupied households and which are considering to be in contravention of their social function as established by law.

Councillor Arriola stated that the TC’s ruling validates “without any restriction” the ability of Basque institutions to intervene with unoccupied dwellings that “do not fulfil a social function.” The regulations give the Basque Government and municipalities the ability to determine when a house is considered to be uninhabited and provides those institutions with the instruments “to encourage their occupation or penalise their lack of use.”

The Minister of Housing approved of the court’s ruling which, in his opinion, grants the Basque government the “full jurisdiction” to regulate the sector with legal certainty. The court, however, also ruled that the article granting financial institutions, their real estate subsidiaries and asset management entities the ability to subject property owners to forced expropriation for the temporary use of dwellings subject to eviction proceedings for foreclosure is unconstitutional.

Original Story: El País – Mikel Ormazabal

Photo: Luis Sevillano

Translation: Richard Turner

Spain’s Constitutional Court Abolishes CGT When Values Do Not Rise

23 May 2017 – Expansión

The Constitutional Court (TC) has abolished the municipal tax on capital gains when there is no increase in value, in the first case that applies to the country as a whole, after several sentences containing the same rulings were issued in autonomous regions.

The High Court unanimously considers that the tax, which raised €2,439 million in 2015, is unconstitutional in these cases, which have been very common since the outbreak of the economic crisis. In theory, the tax is levied on the appreciation in property values when they are sold but, in practice, it is always paid, even when the properties decrease in value. The TC has not abolished the tax per se, but rather has cancelled its automatic application in the event that there is no appreciation in prices.

The Court considers that the tax on the increase in the value of urban land violates the constitutional principle of economic capacity to the extent that it is not necessarily linked to a real increase in the value of the asset, “but rather to the mere ownership of the land for a period of time”. In other words, the mere fact of having been the owner of urban land for a certain period of time necessarily implies the payment of the tax, even when there has been no increase in the value of the asset and, furthermore, even when the asset value has decreased. According to the Court, this circumstance prevents citizens from fulfilling their obligation to contribute “in accordance with their economic capacity (Art. 31.1 CE)”.

For this reason, the Court has declared the unconstitutionality and nullity of Articles 107.1, 107.2 a) and 110.4 of the aforementioned law, but “only to the extent that inexpressive situations of economic capacity have not been excluded from the tax due to the absence of increases in value”. From the date of publication of the sentence, the legislator is responsible, in his freedom to set legislation, for carrying out the “relevant changes or adaptations to the legal framework of the tax that allow for the arbitration of how to not subject situations involving the absence of an increase in value of urban land to the tax”.

Original story: Expansión (by M. S.)

Translation: Carmel Drake

Constitutional Court Suspends Tax On Empty Homes

4 May 2016 – Expansión

The Constitutional Court (TC) has suspended three laws approved by the Catalan Parliament, after they were appealed by the Government at the end of April. The laws in question are: the law that taxes empty homes, the local government law and the law for equality between men and women. The appeals have been accepted for processing, which means that the laws themselves have been temporarily suspended. Nevertheless, the acceptance for processing and the temporary suspension do not represent a ruling of any kind regarding the outcome of the appeal.

According to the acting Justice Minister, Rafael Catalá, who spoke at a press conference following the Council of Ministers meeting held on 22 April, the Government is challenging the law that establishes a tax on empty homes because that taxable event is already taxed under the current system for financing local governments, which provides for surcharges of up to 50% under IBI. (…)

The appeal against this Catalan law is surprising if we consider the fact that the Stability Program, which the Government has just submitted to Brussels, praises this law as one of the measures that the regional Governments are using to try to guarantee revenues “such as the tax on empty homes and the tax on tourist accommodation”, it says.

Original story: Expansión

Translation: Carmel Drake

Constitutional Court Temporarily Supends Basque Housing Law

18 April 2016 – Cinco Días

The Constitutional Court (TC) has admitted the appeal filed by the central Government against the Basque Housing Law, which provides for the temporary expropriation of homes by banks, amongst other measures, and has suspended it as a precautionary measure whilst it decides whether or not it complies with the Constitution.

The Government filed an appeal of unconstitutionality against the Basque Housing Law, which, in addition to the aforementioned measure, makes provisions for other initiatives, such as the imposition of a fee on empty homes and the recognition of the subjective right to a home, which will be enforceable in court.

The Basque Parliament approved the Housing Law in June 2015, following lobbying by PSE and with the support of EH Bildu and UPyD. It was rejected by the PP and the PNV. In its appeal, Mariano Rajoy’s Government requested that the admission procedure for the law be temporarily suspended until the substance of the matter has been resolved, as it is allowed to do under the Organic Law of the TC.

The court of guarantees issued a ruling in which it declared the appeal admissible and suspended the law, which does not determine the final outcome, but rather grants a period of five months, which may be renewed, during which time the aforementioned law will not apply and a decision can be taken regarding its future.

In its acceptance and suspension ruling, the TC announced that it will transfer the file “to the Congress of Representatives and the Senate, through their respective Presidents, as well as the Basque Government and Basque Parliament, through their respective Presidents, so that they can make an appearance and formulate the allegations that they deem appropriate, within a period of fifteen days.

Original story: Cinco Días

Translation: Carmel Drake

Land Expropriations Will Be Cheaper After Latest Law Reform

3 February 2016 – Cinco Días

After everything that has happened in the real estate sector since property prices and the production of housing came crashing down, perhaps few will remember the major impact that resulted from the approval of the Land Law (8/2007 and RDL 2/2008). The new legislation was created with the aim of stopping judges from using their discretion in administrative litigation cases, so as to prevent them, in certain cases, from assigning fair values to plots of land subject to expropriation, on the basis that, spurred on by strong demand during the boom times, the values being assigned were leading to a speculative phenomenon that was having serious repercussions on the accounts and financial viability of numerous companies.

In this way, the legislator reduced the categories into which land had been divided historically and established the existence of just two classes: urban (plots) and rural (all others). As such, if land that had been used for agricultural production until that time, was going to be expropriated for the construction of a highway, then it would be valued as rural land (…) and not on the basis of the value of the asset to be constructed on it. (…).

In October last year, the new revised draft of the Land Law was approved, which is going to have an even greater influence of the original objective (to lower the cost of expropriations) and which is going to govern the conditions surrounding urban land in a more specific way. In terms of the valuation framework, it is based on a ruling issued by the Constitutional Court in 2014, which declared that setting the location coefficient (correction factor) at a maximum of two was null and unconstitutional.

In other words, the original law established that rural plots could be assigned a location coefficient to correct the value obtained by capitalising the income from the land. In these cases a correction coefficient (up to a maximum of two) could be applied, if the plots were located near to an urban centre or a centre of production or had certain environmental characteristics…. This represented a relief, in the event of an expropriation valuation, for those plots of land that many developers had stockpiled in outlying metropolitan areas of large cities in the hope of obtaining huge profits and which saw their value fall sharply as a result of the new legislation in 2008.

Nevertheless, the high court declared that the coefficient limit of two was unconstitutional and argued…that “it was not justified by the Law or by the preamble and could end up being whimsical, and prevent the real value of the land from being obtained. The court considers that…this limit is contrary to article 33.3 of the Constitution”. That article refers to the fact that “nobody can be deprived of their assets or rights, except on justified grounds for the public good or in social interest, provided proper compensation is paid and in accordance with the provisions of the law”. (…) .

According to Andrés Lorente, Director of Land at Tinsa, the method for valuing rural land involves dividing the land yield (calculated by capitalising the income from the land) by a capitalisation rate and applying that correction factor based on location to the result, where appropriate, where the correction factor may not exceed two.

“The provisions established in the new revised draft reflect higher rates, which means that the resulting land valuations could be significantly lower than those calculated under the previous legislation. Whereas before, the internal yield of the secondary market for public debt with a term of between two and six years was taken as the reference rate, now the average interest rate over the last three years on the State’s debt over 30 years is taken (3.663%)”, say sources at Tinsa.

As such, since the applicable rates have risen significantly, so the resulting land valuations are significantly lower. There are even cases in which expropriations now, under these new rules, result in a cost for the Administrations that is between five and six times lower than it would have been under the legal framework in force in 2008, says Lorente.

Original story: Cinco Días (by Raquel Díaz Guijarro)

Translation: Carmel Drake