The Subjective Right to Housing and the Social Function of Property: Old and (Not So) New Perspectives

The social function of property is a constitutional principle that shapes the right to ownership, particularly in the housing sector. According to Spain’s Constitutional Court, it is not merely an external limitation but a structural element of the right itself.

Recent legislation — such as the 2023 State Housing Law — has introduced measures including: the obligation to use housing for residential purposes; action against vacant homes; mandatory quotas for social housing; rent caps in stressed market areas. These measures, similar to those in countries like France and Germany, have been upheld by the Constitutional Court (e.g., in rulings 79/2024 and 26/2025) and by European courts, which recognize a wide margin of appreciation for national legislators.

At the same time, so-called large holders — mostly foreign investment funds — control a significant share of the rental market in cities like Barcelona (36%) and nationwide (8.5% of available housing), according to data from Civio. Nevertheless, the real challenge lies not only in regulating property but also in ensuring sufficient public investment in social housing. Spain allocates only 0.14% of its GDP to this end, far below the EU average (0.54%).

Proposed solutions include budget pre-allocations and behavioral incentives to mobilize vacant housing. The social function of property is not an obstacle but a tool to balance rights and ensure access to housing — provided it is accompanied by well-funded public policies.

The document below is an automated version of the original in Spanish.