La Ley de Vivienda 12/2023, una visión desde el Derecho Público. «Nihil novum sub sole»

Resum

Law 12/2023, of May 24, for the right to housing, is the first state law that seeks to comprehensively regulate this right. However, it is not the first housing law in Spain nor are its determinations original. All regional parliaments have legislated on this matter. The tools used by state law have also already been regulated by them. The Constitutional Court has a very well-defined doctrine regarding the configuration of this right with very recent rulings, although sometimes in certain aspects it could be contradictory with its own previous pronouncements. Actually, during these 45 years of validity of article 47 of the Constitution, there has been no lack of state regulation, despite the fact that on occasions constitutional jurisprudence has reproached the State for its peculiar laziness. But, today, even to outline the essential content of the law, the legal configuration of the State is no longer necessary; Regionals regulations in certain circumstances can already do so in light of the latest pronouncements of the Constitutional Court, with the sole exception that they cannot do so through the figure of decree laws. On the other hand, the public stock of state-owned rental housing is null, since those that exist are of regional or municipal ownership, as recognized in the Preamble of the law itself. The specific regulation contained in the law responds to the 13-page outline of the Preamble and 36 articles of certainly peculiar content. Only in the final provisions are substantive regulations contemplated that modify the content of other regulations that in one way or another affect housing: leasing, urban planning and tax laws. Most of its precepts are declarative or programmatic in content. This law is very close in its formulation to the “ornamental law” paradigm. Because it is not imperative, its articles do not have a sanctioning regime or expropriation measures to address cases of non-compliance with the social function of property. All these circumstances make it legitimate to raise uncertainties about the need and opportunity for a state housing law.