—Teresa Violante, Friedrich-Alexander Universität Erlangen-Nürnberg
[Editor’s Note: This is one of our ICONnect columns. For more on our 2023 columnists, see here.]
Facing increasing social contestation due to the escalating inflationary pressure and the detrimental consequences that several years of austerity and budgetary restrictions have produced on the welfare state, the Portuguese Government presented an overarching housing program. The program proposes a forced lease of vacant dwellings in a policy area in dire need of intervention. This innovative measure entails the horizontality of positive obligations of economic and social rights.
International human rights law and constitutional law framework: from the law in books…
In the books, Portugal is an economic and social rights (ESR) champion: it ratified the International Covenant on Economic, Social and Cultural Rights in 1978. In 2013, it also ratified the Optional Protocol to the instrument, providing an international individual complaint mechanism for the rights enshrined, including the right to adequate housing. Its Constitution, approved in 1976, entails the most precise and detailed among the EU member states list of social rights conceived as fundamental subjective individual rights. The right to adequate housing is included. Article 65 says that “everyone has the right, for himself and his family, to have an adequately sized dwelling that provides hygienic and comfortable conditions and preserves personal and family privacy.”
… to the law in action
Unlike the right to education, social security and health, the Constitution does not demand the creation of institutions necessary to implement the right to housing. Instead, it establishes the responsibilities of the State in the areas of (a) programming and implementation of housing policy, (b) the promotion of the construction of low-cost and social housing; (c) stimulus for both home ownership and rentals, and d) support for community initiatives to resolve housing problems. It also includes the obligation of the State to adopt a rental system that is compatible with family incomes.
Until the financial crisis, the State essentially discharged its constitutional responsibilities by subsidising credit and incentivising consumers’ indebtedness. At the same time, due to regulatory restrictions, the lease market was severely restricted. Public sector housing is almost nonexistent (2% of the total dwellings, while in some EU Member-States, that number increases to 30%).
The right to housing as a defensive ESR
Despite the progressive nature of the Portuguese Constitution, the case law leaves much to be desired. The Constitutional Court, with one exception, refuses to acknowledge the positive dimension of social rights as judicially enforceable yardsticks. Significant decisions of the Court have enforced the negative dimension of the right to housing, particularly in cases of conflict with the right to private property. In these cases, related to the protection of tenants against evictions, also in the context of procedural hurdles, the right to housing has served as a shield “to protect existing entitlements or to protect the status quo, rather than to demand new claims or programs or improvements on existing ones.”[1]
However, recent animosity of the Court towards the right to housing, especially when in conflict with the right to property triggered by creditors’ rights in the realm of foreclosures, has punctuated the case law.[2] The tension between these two rights raises perplexities. On the one hand, they are both qualified as ESR in the bill of rights. On the other, the cases concern conflicts when property protection is triggered by creditors’ rights of financial institutions and not housing property, let alone of individual rights-holders. According to the Portuguese Constitution, extending fundamental rights protection to corporations is not automatic. Henceforth, the arguments related to the judicial application of the individual and defensive dimension of property to corporations should take into account the function of the corporation as a vehicle irreducible to the individuals underlying it and be weighed against the individual protection raised by housing as a right to a decent, adequate and affordable home, especially when no housing or real estate property is involved but only creditors’ rights. That has never happened. Property rights of corporations are treated by the Constitutional Court as property rights of individuals – and even afforded stronger protection when based on creditors’ rights.[3]
The procedure of compulsory lease of vacant dwellings
The programme[4] presented by the Government entails several policies aimed at increasing the housing supply, increasing houses on the rental market, and combatting speculation. Some controversial measures include ending the Golden Visa scheme, freezing new tourist rental licenses, and, notably, the compulsory rental of vacant dwellings.
Vacant property raises significant challenges in the context of housing affordability crises. Some legislators have addressed it through increased taxation (as in several cities in Canada, and British Columbia). In Germany, the State of Berlin passed legislation[5] prohibiting the misappropriation of housing, meaning that, during the housing crisis, dwellings cannot be used for any other purpose (such as tourism or other commercial uses) unless the owners are granted an official authorisation. Part of the “misappropriation of housing” concept would be leaving an apartment empty for over three months. Fines can go up to 500.000 €.
According to the Government’s draft proposal,[6] the municipality will submit a rental proposal to the owner of the vacant dwelling. If the owner refuses or does not reply in due course, and the dwelling is not occupied or rented in the following 90 days, the municipality will proceed with the forced lease based on a legal regime already foreseen in the law for situations of forced renovation works performed by local governments.
This instrument recognises that private actors may have positive obligations in fulfilling the right to housing and is intrinsically connected with the debate on the social function of property. Despite not being expressly entrenched in the constitutional text, the Portuguese Constitutional Court has never hesitated to recognise the “social function of property, especially concerning leases, which may justify the imposition of restrictions on the rights of the private owner”[7]. But it has also expressly affirmed that it “does not follow that private individuals can be required to replace the State in its obligations concerning the right to housing”.[8] A different course was taken by the South African Constitutional Court in Grootboom,where the Court said that “[a] right of access to adequate housing also suggests that it is not only the State who is responsible for the provision of houses, but that other agents within our society, including individuals themselves, must be enabled by legislative and other measures to provide housing”[9]. However, the Portuguese Constitution only enshrines horizontality for civil and political rights, and the legal scholarship lacks doctrinal tools to extend it to ESR[10].
It is difficult to predict whether the draft measure will ever become legislation. It has been the subject of intense criticism because of the poor justifications presented and the intense infringement it poses on property rights. Should it survive parliamentary debate and scrutiny, the President of the Republic will likely refer it to the Constitutional Court for a priori review. In that case, the Court must revisit its restrictive construction in light of the emerging international human rights law trend concerning the responsibility of private actors for ESR. Rights protection and implementation need concerted action by several actors, particularly in the unaffordable renting sector. However, some actors should bear more significant obligations than others, and the current draft doesn’t allow for that kind of modulation.
Suggested citation: Teresa Violante, The Legislative Imposition of Positive Obligations to Fulfil the Right to Housing: The Compulsory Lease of Vacant Dwellings in Portugal, Int’l J. Const. L. Blog, Mar. 29, 2023, at: http://www.iconnectblog.com/2023/03/the-legislative-imposition-of-positive-obligations-to-fulfil-the-right-to-housing-the-compulsory-lease-of-vacant-dwellings-in-portugal/
[1] Rosalind Dixon, David Landau,”Defensive Social Rights”, The Oxford Handbook of Economic and Social Rights. Malcolm Langford, Katharine Young (eds.), 2022. See, for example, Acórdãos 425/87, 277/2016, 269/2019.
[2] See especially Acórdãos 612/2019, 299/2020 and50/2022.
[3] Acórdão 468/2022.
[4] Available at https://www.portugal.gov.pt/pt/gc23/comunicacao/documento?i=mais-habitacao.
[5] The Zweckentfremdungsverbots-Verordnung.
[6] Available at https://www.consultalex.gov.pt/ConsultaPublica_Detail.aspx?Consulta_Id=290&fbclid=IwAR3loEUbNyMTto72eHxv5VxnducnN1X58gwzGrosBZZE68vSsfdCMbgG720 (“Legislação Mais habitação” “Artigo 15.º”).
[7] Acórdão 612/2019.
[8] Acórdãos 101/92, 130/92, 633/95, 570/2001 and 50/2022.
[9] Grootboom 2000 (11) BCLR 1169 (CC) §35.
[10] But see Jorge Reis Novais. Direitos sociais – Teoria jurídica dos direitos sociais enquanto direitos fundamentais. Almedina, 2021.
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