Is it legally possible to reserve protected housing on consolidated urban land without compensation?

The Spanish Supreme Court confirms that it is legally possible to reserve protected housing in consolidated urban land and that there is no right to compensation for such reservation.

The Judgment of the Supreme Court of February 5, 2026, appeal 3646/2023, ECLI:CA:TS:2026:513, has resolved the following question of cassational interest regarding the modification of the Metropolitan General Plan in force in the city of Barcelona:

“To determine whether, through the corresponding planning instruments, reserves of floor space for publicly protected housing can be established in consolidated urban land, in actions that could be classified as building developments, in accordance with the provisions of article 7.2 of the TRLSRH, and whether, if applicable, this restriction of buildability or use must be compensated.”

This judgment has resolved the appeal filed against the Judgment of the High Court of Justice of Catalonia No. 3512/2022, of October 19 (Click here).

The judgment addresses two questions:

1. Is there a legal possibility to establish a reserve for protected housing on consolidated urban land?

The answer is affirmative.

The Judgment is based on the doctrine established by the Constitutional Court Judgment 16/2021, of February 28, which examined an extension by Catalan autonomous legislation of the reserve for publicly protected housing to building developments on consolidated urban land. The Supreme Court notes that this judgment validates reserves for protected housing in transformation and building developments. The Supreme Court recalls the statutory condition of real estate property in accordance with urban planning legislation, which means that the duties inherent to building activity cannot be reduced to those of art. 18.3 of the TRLUSRU (relocation, compensation, and duty to complete urbanization), that this is not a closed list and that they must be complemented with the rest of the obligations arising from urban planning instruments, mentioning the precedents of the Supreme Court Judgments 206/2021, 1345/2017, 195/2020, and 1052/2020.

Having answered the first question, the Supreme Court proceeds to answer the second.

2. Assuming the possibility of establishing a reserve for protected housing on consolidated urban land, must this decision be compensated?

The answer is negative.

The Supreme Court starts from the general rule that delimitations of property rights derived from urban planning are not compensable, except in cases expressly provided for by law. The judgment links this rule with the social function of the property right under Article 33.2 of the Constitution and with the statutory nature of real estate property, recalling established case law.

From this, the Chamber proceeds to analyze the exception on which the appellant bases his claim: article 48.b) TRLSRU, which recognizes compensation “in any case” in the presence of “singular linkages and limitations”.

Is the reserve of floor space for publicly protected housing imposed on consolidated urban land a “singular” linkage or limitation? The Court’s answer is negative, given the lack of singularity, since the measure adopted by the urban planning was of general application throughout the city of Barcelona.

In these terms, the 30% reserve of floor space for protected housing acts as a general delimitation of use. Furthermore, compensation would require, in any case, effective damage to a content patrimonially incorporated into the owner’s sphere. Buildability, by itself, does not integrate the content of the property right, and only becomes patrimonialized under the terms and moments legally provided. Therefore, a mere frustration of the higher profitability associated with free-market housing compared to protected housing, if it does not translate into an already patrimonialized right, does not constitute, by itself, compensable injury.

The Supreme Court specifies, consistently with its own reasoning, that the doctrine of the mentioned Constitutional Court judgment does not establish automatic compensation merely for imposing the reserve, but refers to the ordinary compensation mechanisms of the system: the equitable distribution of benefits and burdens when applicable, or compensation when it occurs with respect, in any case, to the compensatory guarantee of Article 33.3 of the Spanish Constitution when effectively patrimonialized rights are affected, the expectation of greater economic benefit not being sufficient.

It should be noted that prior to the Judgment of the High Court of Justice of Catalonia of 2022, which is the subject of this appeal, the Judgment of the High Court of Justice of Catalonia of July 6, 2021, appeal No. 33/2019, had already been issued with similar reasoning, which had already validated this type of reserve.