The housing cooperatives with a regime of transfer of use as a legal tool for the new housing patterns

Abstract

The right to decent housing is reckoned as one of the most important social rights for citizens. It does not only imply the use of a space to live but also it has a close connection with the daily life, privacy and family organisation of the inhabitants. The importance of the right has not been disputed, being enshrined in various International Treaties and almost every Constitution in the world. However, its legal status and enforcement against public actors, in the case of Spain is not completely clear. It is recognised in article 47 of our Constitution as a right for all Spanish citizens but it is not protected by the higher guarantees of the most preserved fundamental rights. The right to housing may be achieved by housing cooperatives, a known and ancient figure that through a philosophy of sharing -at least at a theoretical level-, reunites people with the same needs and aspirations regarding housing and with the aim of saving the maximum amount of intermediaries’ costs possible. This paper wants to analyse the role that cooperative societies may have in models of housing that are new in Spain. Traditionally, in our country, housing cooperatives considered that their objective was fulfilled when the houses were built and given to their members as owners. This implied the end of the society and even of the community created through the cooperative and the appearance of a new regime based on horizontal property and Civil Law. However, nowadays, new models of inhabitation constitute an adequate solution for certain social groups: Especially, the youth, the elderly and the handicapped people. These collectives, due to their special needs or way of living, do not need to be owners of a house. The alternative is not only renting but being an assignee of the use of the house that is collectively owned. This regime is well known and developed in other countries, such as the Scandinavian ones in Europe and in the United States of America. In fact, the Andel model, which was born in Denmark and has spread to other countries such as Sweden, Finland and Germany, in a smaller scale, it is precisely a hybrid system between the ownership and the renting of a house. It consists of the common ownership of a building by the members of a housing cooperative that pay an entrance and a monthly fee to inhabit the house. This fee is lower than a monthly rent and the model has as one of its main advantages that inhabitants may remain in the house for an indefinite period of time. Apart from the Andel system, we study another recent phenomenon that is called co-hous-ing. The idea is that the collectivity formed to build and to own the common space may be also looking for a common lifestyle, in terms of ecology, integration, social relationships, etc. and due to this sense of community, they integrate a co-housing community. This implies the democratic and common management of the structures built, their use in turns, a respectful organisation to achieve welfare for the ensemble. In this kind of inhabitation, cooperatives can also serve the purpose thanks to their democratic principles and social spirit. Descending to the normative regime, it is found that the Spanish legal system on cooperatives is neither an obstacle nor a help because it does not forbid the maintenance of the cooperative once the buildings are finished but it does not deeply regulate these situations. The national law -number 27/1999- and those of the Autonomic Communities in Spain are not very descriptive in the ways other than ownership in which the members of the cooperative may enjoy their houses. However, the grant of the use is mentioned in some of them and some support is found in the Civil Code. In fact, the grant of use can be achieved through a right in rem: The right to use or to usufruct. These norms will help our study but we may not loose the focus on the internal norms of the cooperative: The corporate statutes and the regulation of the intern regime as well as all the agreements adopted by the democratic organs of the society. These will constitute fundamental bases for the cooperative and the daily life of its members. They will also be of paramount importance in cases of co-housing, in which it is needed a thorough regulation of the turns, the rights of the inhabitants and the consequences of non-compliance with the internal systems. Even if the possession of a house in ways different to ownership are not very known or popular in Spain, they started to have an increasing demand since the first years of 2010. This means that we now have some examples of communities organised on the basis of a right of use, both “simple” or in co-housing. As an example, we will analyse the norms and the requirements of access of the community of LaBorda in Catalonia. We also have observed that some municipal authorities and even the Spanish Government are now giving more support to building groups, sometimes even transferring lands to building communities for long periods of time or facilitating the access to certain subsidies, if the groups will form a co-housing community. Examples of these situations are found in the municipalities of Rivas Vaciamadrid and Atxondo and in the latest plan of housing number 9 for Spain, that we comment throughout the paper. Our principal objective is to know if these forms that we think will be more and more used in future years can pivot over the cooperative model. We observe that the traditional real estate market based on ownership or rent is no longer an adequate solution for many people. Moreover, the economic crisis that started in 2010 showed the great amount of speculative interests that are present in this market that ultimately harm consumers. Cooperative societies, even if they have also been affected by capitalistic interests, have at their core the social welfare of members and communities. The tendencies to own in common, to share spaces and time and to be part of a group fit very well in the cooperative spirit from a philosophical point of view, but we also think that cooperatives are legally prepared to support these structures.