Access to housing is one of the most recurring debates in Spain. On social networks and in social gatherings it is frequently repeated that “housing is a right” and that, therefore, no one should be hopeless or be left homeless. However, the lease expert lawyer Alberto Sánchez, through his LegalMente channel, wanted to clarify this point from a strictly legal perspective.
His message is direct and without nuances: “Housing is not a fundamental right, I repeat, it is not.” Sánchez explains that there is a common confusion between what the Constitution includes and what can legally be claimed before the courts. In his video he insists that “no one can go to the judge or the government and demand that they give them a house to live in,” in the same way that “no one can stop paying rent and based on this right expect to continue living in that house.”
The lawyer criticizes that in some speeches the right to housing is equated with other rights of maximum constitutional protection. As he points out, it is repeated that it is in the Constitution “and that therefore everyone has to have a house or that they cannot evict or that the occupation is legal”, something that he considers “nothing could be further from the truth.”
The difference between fundamental right and guiding principle
The key, he explains, is in the constitutional location. “It is not a fundamental right because it is not found where fundamental rights are included in the Constitution.” And remember that these do have reinforced protection. “Fundamental rights can be invoked before the Constitutional Court and have a specific procedure in the courts.”
As an example, he mentions some of them: “equality before the law, physical integrity, religious freedom or freedom of expression.” On the other hand, article 47 of the Constitution (the one that refers to housing) “is not a fundamental right, it is a guiding principle.” What does this mean? That should guide political and legislative action, but cannot be directly claimed before a judge to demand housing.
What is article 47 for then?
Sánchez clarifies that the right to housing “has to inspire the norms and actions of the government and the state.” That is, it is developed through ordinary laws. In this sense, he points out that “the urban rental law or the housing law, which is more recent, develop this right and citizens have the rights conferred on them by these laws.”
But he insists that those rights do not include “requiring the government to give a house to a judge or a person who has many.”