TARSSO is a law firm for businesses providing comprehensive solutions in the legal and real estate field. Technological innovation and the commitment of its team of professionals are the guiding principles of a formula that allows the development of a pioneering model in the market, offering unique legal and consulting services, including litigation and out-of-court negotiation. It has a highly specialized team with a track record and the capacity to find solutions beyond the conventional.

1. Introduction

On May 25, 2023, Law 12/2023 came into effect, establishing requirements for the admissibility of claims in both mortgage enforcement proceedings and those set out in numbers 1st, 2nd, 4th, and 7th of paragraph 1 of article 250. The plaintiff must be a large housing provider, the dwelling must be the occupant’s habitual residence, and evidence must be provided regarding the economic vulnerability of the occupants or the existence of a social need, with a prior conciliation or mediation procedure established by Public Administrations.

The requirements of the new law and the lack of development and determination of conciliation and mediation mechanisms and competent bodies for these processes have left property owners in a situation of helplessness when initiating corresponding judicial processes for property recovery.

To prevent delays in access to judicial protection for large housing providers, TARSSO recommends requesting evaluation and information on situations of social need from local municipalities to verify economic vulnerability. In Catalonia, communications are also directed to the Housing Agency of Catalonia and the Valencian Housing and Land Entity in Barcelona and Valencia, respectively. In Barcelona (the capital), requests are made to the Municipal Housing Institute, which is still developing its functions with the Housing Agency.

Regarding the legally established conciliation and mediation procedure, only implemented in Catalonia, it will be processed by the Catalan Consumer Agency. Once the application is admitted, the mediator informs the company and explains the facts. The company has 30 days to respond. If accepted, a proposed solution or arguments can be submitted. If not accepted or no response is received, the procedure is closed.

If the company accepts, the response is conveyed to the consumer, who can accept or reject the proposal or agree or disagree with the company’s arguments. If objections are raised, they are sent back to the company for a response within 10 days. If an agreement is reached, the file is closed; otherwise, the consumer can initiate an arbitration request with the relevant Arbitration Board.

2. Actions of Public Administrations

Regarding the requirement to prove not being a Large Housing Provider through registry certification, it was initially impossible to fulfil for several months due to the unavailability of such certification from Property Registries. Later, the College of Registrars provided a specific certificate, “Certification of location of Law 12/2023 for the right to housing,” accessible through their online registration page.

This certificate specifically attests to the requirements of the new law concerning the number of properties (or their non-existence) to determine if one is a Large Housing Provider. Despite some technical difficulties (occasionally identifying simple rights over properties as ownership), it has advanced compliance with the requirements for filing claims.

As for the processing of requests by Large Housing Providers by Public Administrations, although the requests are being accepted, many public bodies are opting for administrative silence. Therefore, the responsible declaration of having approached the Administration to obtain vulnerability information, along with the submitted request, should be sufficient for the courts to admit the claims.

However, the responses from Public Administrations that have answered the requests have only issued requirements (powers, property ownership, etc.) without providing any resolutions.

Moreover, the initiation of the process and, if applicable, the commencement of conciliation or mediation established by competent Public Administrations within two months, are not being communicated to large housing providers. Therefore, application to the Autonomous Community and the municipality where the property is located, along with a Responsible Declaration stating compliance with the legally established procedure.

3. Actions of the Courts

As mentioned earlier, compliance with Article 439 of the Civil Procedure Law (LEC) is a prerequisite for admissibility in judicial practice. The courts are strictly adhering to this, rejecting claims that do not meet the requirements set by the new law. If claims are admitted without meeting the legally established premises, their nullity is later declared ex officio.

To date, only guiding criteria approved by the Judges of the First Instance of Barcelona for the application of the Law for the Right to Housing has been admitted. The objective is to reduce litigation and introduce greater legal certainty into judicial proceedings. However, the agreement is not binding and respects the independence enjoyed by the holders of judicial power.

In the mentioned guiding criteria, it is emphasized that the procedural requirements set out in Article 439 of the LEC paragraphs 6 and 7 do not apply to claims filed before the entry into force of the Law for the Right to Housing, i.e., before May 26, 2023. From this moment onwards, the new regulation will apply, subject to rectification under Article 231 of the LEC in case of non-compliance with the requirements by the court.

It is noteworthy that, concerning the incidental suspension of the procedure, the Judges of First Instance in Barcelona believe that its opening will not occur outside the expressly foreseen procedural moments of claim admission and execution initiation/dispatch.

From our experience, once legal actions are initiated, including the request made to the corresponding Administration with the claim, seeking information on the economic vulnerability of the occupants along with the Responsible Declaration, we find that, for the moment, the claims filed by this law firm are being admitted.

It is too early to establish a national criterion, as we are still in an early stage, and different criteria for claim admission and strict compliance with the requirements of the new law may be set by the Legal Secretaries of each judicial district.

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