Author: Miriam Clapés y Begoña Romero-Requejo
Last Saturday, 11 April 2020, Order TMA/336/2020, of 9 April, was published, incorporating, replacing and modifying the aid programmes of the State Housing Plan 2018-2021, in compliance with the provisions of Articles 10, 11 and 12 of Royal Decree Law 11/2020, of 31 March, adopting urgent complementary measures in the social and economic field to deal with COVID-19.
At AVQ, we will try to respond to different legal questions that arise in relation to this regulatory standard.
[Warning: this report is for information purposes only and does not constitute a legal opinion]
What is the objective of this new Program?
To address situations of extreme urgency, which until now were not resolved by the State Housing Plan 2018-2021 program, regulated by Royal Decree 106/2018 of 9 March, which it replaces for being ineffective in its design to address the impact of the pandemic that is being suffered and thus, gain immediacy in the solution to this new reality.
What solutions does it refer to?
Due to the situation caused by the Covid-19 and the paralysis of the real estate market, the aim is to provide housing solutions that can be implemented quickly and by direct adjudication when necessary, provided that an assessment of the corresponding social services has been made.
What new features does it incorporate?
- It incorporates the new “aid program to help minimize the economic and social impact of the COVID-19 in the rent of habitual residence”.
- The programme of assistance to persons in a situation of eviction or the launch of their habitual residence is abolished and replaced by the programme of assistance to victims of gender violence, persons subject to eviction from their habitual residence, homeless persons and other particularly vulnerable persons regulated in Article 4;
- The programme for the promotion of rental housing regulated in Chapter V of Royal Decree 106/2018 regulating the State Housing Plan 2018-2021 is amended in accordance with Article 5.
Article 4. Programme of assistance to victims of gender-based violence, persons subject to eviction from their habitual residence, the homeless and other particularly vulnerable persons
Who can benefit from this program?
Victims of gender-based violence, persons subject to eviction from their habitual residence, the homeless and other particularly vulnerable persons.
Who determines whether one is particularly vulnerable?
The social services of the Autonomous Communities, the cities of Ceuta and Melilla or the corresponding local administrations.
Can anyone else be a beneficiary?
Yes, as long as it is on behalf of the persons described above, public administrations, public companies and non-profit, collaborative economy or similar entities may be beneficiaries, always on a non-profit basis, as long as their purpose is to provide a housing solution for those persons.
If I am within the above mentioned group, is there any exception that may imply that I am not a beneficiary of the program?
Yes, if you have a property or usufruct that can be occupied and you continue to be within the group, those people cannot be beneficiaries.
What is the housing solution?
It is a measure that consists of making a dwelling available to be occupied under a renting or cession of use regime, or under any temporary occupation regime admitted by law.
Which dwellings can be the object of this measure?
Those publicly-owned dwellings, or those that have been ceded for use to a public administration, even though they maintain private ownership.
What does it mean to cede the use of a privately owned property?
In order to anticipate the scarcity of the public housing market and not be able to satisfy the demand of economically vulnerable people, through this program, it is allowed to extend the offer of housing, with the inclusion of those that are privately owned.
In this sense, it consists of the temporary assignment of the use of all or part of a furnished and equipped dwelling in conditions of immediate use, whatever the channel through which it is marketed or promoted and carried out with a free or onerous purpose, at the owner’s discretion.
So, is any house required to be released for use?
No. To find out if a private home is eligible for this program, it must be adequate in terms of size, services and location. Therefore, the criteria established by each autonomous community must be taken into account.
And if my private home meets these circumstances, am I obliged?
No. The owner will voluntarily be the one who decides to provide his or her housing to the Autonomous Community in order to have it available in the public housing schemes.
Does article 4.3 of the order, when it says that “the aid may be applied to adequate housing, privately owned or to any accommodation or residential facility that may be occupied by the beneficiaries, under the same schemes”, allow for the expropriation of empty housing or second homes?
No. This article and no article of this Order allows the expropriation of empty dwellings or second homes. No article in this order refers to the abolition of private property or expropriation.
Then what is being said in Article 4(3)?
The Ministry of Transport, Mobility and Urban Affairs in the social networks has confirmed that this article does not allow expropriation” but rather “enables the administrations to seek a housing solution, even in the private market, if the administration cannot offer one”. Adding that when the article says “same regimes” it refers to those that appear in the same paragraph of the rule, a few lines before, and correspond to “in rent, assignment of use, or any regime of temporary occupation admitted in law”.
The purpose of the housing solution is to expand the supply of housing by entering the private real estate market, so that hotel rooms, residences, and any private housing may form part of the catalogue under the regime contemplated for public housing.
If my home is private and I give up the temporary use for this program, won’t I be able to establish the rent I am interested in?
No. You must take into account that if you cede the temporary use of your home, it will be to help an economically vulnerable group. Therefore, if the free agreement on rent is applied, its cession would be meaningless. Therefore, it will be the Autonomous Community that will manage and dispose of the housing to the beneficiaries, always with the approval of both the owner and the beneficiary.
Does this mean that I will not receive the income if I cede my home?
No. You will receive all of the agreed rent, which is adjusted to the framework of the public housing system.
In addition to the housing solution, is there any other type of aid?
Yes, as long as you have the approval of the social services of the autonomous community.
Depending on the personal circumstances of the beneficiary, within the limits of this programme, financial aid may be granted.
What is the amount of this type of aid?
The following amounts may be reached:
- a. Up to 600 euros per month and up to 100% of the rent or price of occupation of the property, as established. In cases duly justified by the body granting the aid, it may be up to 900 euros per month and up to 100% of the rent or occupancy price, as established.
- b. Up to 200 euros per month to cover maintenance, community fees and basic supplies, with a limit of 100%.
How long can these economic aids be obtained?
They may be granted for a maximum period of five years, and the amount required to pay the rent or the maintenance, community and basic supply expenses for the six months prior to the date on which the beneficiary would have been unable to pay may be added to the previous periods, with retroactive effect.
Who should I contact to get this financial aid and how should I proceed?
You must initially obtain a report from the local or regional services that certifies that you are a beneficiary of the programme. Then, you must go to the respective autonomous community, which may grant this aid immediately.
Article 5. Amendment of the programme for the promotion of rental housing stock regulated in Chapter V of Royal Decree 106/2018 regulating the State Housing Plan 2018-202
Does Order TMA/336/2020 of April 9 modify the State Housing Plan 2018-2021?
Yes, Article 5 of Order TMA/336/2020 of 9 April modifies, as a result of the aid programme established in Article 4, Articles 25 to 32 of the programme for the promotion of rental housing stock regulated in Chapter V of Royal Decree 106/2018 which regulates the State Housing Plan 2018-2021.
These aid programmes were not prepared to quickly resolve the situation of vulnerability of certain people as a result of COVID-19. Order TMA/336/2020 seeks to adapt these programmes to situations of vulnerability that arose with COVID19.
What does Royal Decree 106/2018 of 9 March, which regulates the State Housing Plan 2018-2021, regulate?
Royal Decree 106/2018 regulates public aid, the objective of which is
- To continue to offer aid adapted to social needs and the limited resources available.
- To promote the renting of housing
- Improve the quality and sustainability of housing.
- Improve cooperation, financial co-responsibility and coordination between administrations.
- Aid to young people so that they can have access to housing, either for rent or for purchase.
- Aid related to the adaptation and rental of housing for the elderly.
- Aid for people in situations of eviction.
- Aid for urban and rural regeneration and renovation.
- Improvement of energy efficiency and sustainability of housing.
What modifications does Article 5 of Order TMA/336/2020 of 9 April include in the State Housing Plan 2018-2021?
Article 5 includes the following modifications to the State Housing Plan 2018/2021:
Article 25: A paragraph is added to include, in obtaining financing from the aid of this programme, housing acquired by the public administration, public bodies and public companies, in order to increase the public and social housing stock for rental or transfer of use[1].
Article 26: A paragraph is added to this article by which public administrations, public bodies and public companies that acquire housing for the purpose of increasing the public and social housing stock destined for rental or transfer of use are included as beneficiaries of the aid.
Article 27: The wording of paragraph 2 of this article is amended to incorporate the obligation of the Autonomous Regions and Ceuta and Melilla to submit to the Ministry of Transport, Mobility and the Urban Agenda the forecasts for action or acquisition and justification of viability.
Article 28: In relation to the amount of aid, a fourth paragraph is added, stating that purchasers of housing to increase the public and social housing stock for rental or transfer in use may obtain a subsidy of up to a maximum of 400 per square metre of useful area.
Article 29: A fifth paragraph is added regarding the possibility for the Autonomous Regions and Ceuta and Melilla to set a limit on the price of rental or transfer of use of public and social housing intended for rental and acquired with the aid of this programme.
Article 30: In relation to the payment of the aid to the beneficiary, a paragraph is added regulating the possibility of direct award of the aid to the beneficiary before the formalisation of the public deed of sale.
Article 31: In relation to the period for the acquisition of housing, it is established that the acquisition of housing must be formalized within 6 months from the recognition of the debt or 3 months from the payment conditioned to the acquisition.
Article 32: A paragraph is added which establishes that housing
acquired with the aid of this programme may only be rented or transferred to
persons whose income does not exceed 3 times the IPREM[2].
[1] The public rental housing stock includes rental housing, aimed at ensuring the right to housing at an affordable price for all citizens.
[2] IPREM: Public Indicator of Multiple Effect Income used as a reference for the granting of aid. It is published annually in the Budget Law.