Private property and the right to housing

The social function of the property as a response to the housing crisis in Spain

Abstract

This research analyses access to housing in Spain in light of the current housing crisis, marked by a fragile residential model and structural dependence on the private market. In this context, Article 47 of the Spanish Constitution is examined, highlighting its configuration as a guiding principle and the limitations that this entails, while also comparing it with international and European standards that call for more effective protection of housing. The study also focuses on Law 12/2023, the first state regulation on the subject, which opts for a regulation of the objective dimension of the right to housing and projects its guarantee onto the dynamics of the private market. Finally, it addresses the use of the social function of property as a tool for intervention, pointing out the constitutional tensions it raises with regard to the preservation of the essential content of the right to property, as well as the need to consider the proportionality test in order to assess the constitutionality of the restrictions imposed on property owners.