04 Jun The Requirement of Procedural Admissibility in Housing Matters

The Requirement of Procedural Admissibility in Housing Matters: Legal Keys and Reflections on Spanish Constitutional Court Judgments 25/2025 and 26/2025

On June 3, 2025, I had the opportunity to attend the conference organized by the ADR Center of the Barcelona Bar Association (ICAB), titled “The Requirement of Procedural Admissibility in Housing Matters: Analysis and Effects of Spanish Constitutional Court Judgments No. 26/2025 and 25/2025.”

The presentations by Isabel Viola Demestre, Vicente Pérez Daudí, and Eugeni Martínez Caparrós were particularly enlightening, offering a well-grounded and critical perspective on an issue that raises intense legal and social debate.

A Structural Problem

Spain has been suffering from a severe structural deficit in social housing for decades. The 2008 financial crisis, far from becoming a turning point, was not used to put the vacant housing stock at the service of the social function of property, enshrined in Article 33.2 of the Spanish Constitution (CE).

Housing, recognized as a right under Article 47 CE, remains in practice subject to market dynamics, without sufficient corrective mechanisms.

Fundamental Rights in Conflict

This context directly affects the balance between two fundamental rights:

• The right to effective judicial protection (Article 24 CE) for claimants (generally large landlords who bring the matter to court)
• And the right to housing and to a dignified life (Article 8 of the European Convention on Human Rights – ECHR) for occupants

In particular, Article 6 of the ECHR also protects the right to a fair trial. From the international perspective, the UN Committee on Economic, Social and Cultural Rights (CESCR) has repeatedly found that Spain fails to comply with Article 11.1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), as it does not effectively guarantee access to adequate housing.

Spanish Constitutional Court Judgments 25/2025 and 26/2025

Both rulings analyze the constitutionality of Article 6.7 of Spain’s Housing Act (Law 12/2023), which imposed certain procedural admissibility requirements in judicial proceedings involving primary residences.

Partial Unconstitutionality

The Constitutional Court declared paragraph c) of Article 6.7 unconstitutional, which required large landlords to offer a social rental agreement before filing a claim. Although paragraphs a) and b) were not annulled, in practice they have become ineffective.

Key Takeaway from the Court

The admissibility requirement is not unconstitutional per se, but the specific way in which it is imposed and the burden of proof it places on the claimant violate the right to effective judicial protection (Article 24 CE).

Definition of Large Holder: Legal Uncertainty

One of the most contentious points is the definition of large property holder:

• Under national law: Article 3.k of Law 12/2023 defines a large holder as a natural or legal person owning more than 10 urban properties or a built area exceeding 1,500 m².
• Under Catalan law: Article 5 of Law 24/2015, as amended by Decree-Law 17/2019, establishes a different criterion, leading to conflicting interpretations, especially since Article 3.k of the national law does not apply in Catalonia (as affirmed by the Constitutional Court and regional case law).

This divergence, coupled with poor legislative drafting, results in legal uncertainty and unnecessary litigation.

What Counts as a Primary Residence? And Who Is Considered Vulnerable?

The concepts of “primary residence” and “vulnerable person” are essential for applying protective measures or procedural admissibility requirements.

However:

• Being registered (empadronado) does not necessarily mean that the person resides in the dwelling.
• The condition of vulnerability is not always clearly defined or documented.
• Large property holders lack access to social data, yet they are expected to meet an unreasonable burden of proof, which also calls into question the effectiveness of the requirement.

The Role of ADR and Mediation

The procedural admissibility requirement could be more effectively addressed through the existence of a specialized ADR mechanism for housing, tailored to the legal and social circumstances of each case.

Current deadlines (under Law 1/2025 on ADR procedures):

• 1 month to initiate the procedure
• 3 months to complete mediation (extendable by agreement)
• Total: 4 months, which does not amount to an excessive delay.

Choosing the most suitable ADR method (mediation, conciliation, negotiation, etc.) should be part of a comprehensive public policy on access to justice.

Lawyers’ Duties and the Role of Ofideute

The Spanish Code of Legal Ethics obliges lawyers to:

• Inform their clients about the possibility of using ADR mechanisms.
• Attempt negotiation before going to court (Article 21).

In Catalonia, the Ofideute service (managed by the Catalan Housing Agency) acts as an intermediary in disputes over rent or mortgage defaults, offering advice, referrals, and promoting out-of-court agreements before litigation.

Final Reflection

Judgments 25/2025 and 26/2025 clarify the boundaries for legislators when imposing procedural requirements before filing legal claims. Social rent itself is not unconstitutional, but its imposition as a procedural requirement is, when applied without safeguards or proportionality.

These decisions open the door to constructive dialogue among public authorities, legal experts, and ADR operators on how to design effective and appropriate pre-litigation mechanisms for resolving housing disputes without infringing on fundamental rights.