Introduction
Over the past decade, European cities have grown increasingly unaffordable due to a complex interplay of economic, political, and sociological factors characteristic of the post-global financial crisis era. Attention often focuses on population growth, urbanization, mass tourism, increased mobility of workers and students, and the negative externalities of foreign investment-oriented economic policies. Another crucial factor is the rising statistical relevance of renting compared to home purchasing—largely an outgrowth of urbanization and increased professional and educational mobility. Together, these trends have exacerbated the congestion of housing markets within larger urban centers, driving unprecedented real estate and rent prices and significantly undermining the affordability of housing adequacy.Footnote 1 The surge in housing costs, in turn accelerates large-scale gentrification,Footnote 2 pushing low- and middle-income long-term residents out of inner neighborhoods and into more peripheral, affordable areas, thus significantly reshaping urban geographies.Footnote 3
Surely enough, unaffordability and gentrification are not new phenomena and have extensively been analyzed by geographers, sociologists, and political scientists, particularly in the American context. In this sense, the literature on their diverse causes and the risks they pose to social cohesion and civic participation in urban settings is vast and comprehensive.Footnote 4 From a constitutional standpoint, instead, modern housing crises reignite longstanding conceptual intricacies within the right to property, especially its identity divide between individual and social utility, which mirrors broader tensions between classical liberal and social constructions of constitutionalism. Such property challenges emerge in the context of three essential sociological developments, each distinct within the broader financialization of the housing sector: (i) The increasingly unequal geographies of rental profitability both within urban areas and between urban and rural regions; (ii) the horizontal pluralization of housing ethics through the proliferation of short-term lettings; and (iii) the localist re-politicization of property relations driven by contemporary housing activism. Collectively, these trends depict an increased fragmentation in the politics of property use, across purely economic and social reasoning.
Normatively, these tensions are deeply entangled with the status of housing adequacy in national constitutions. Indeed, property and housing share plural functional connections, as the former provides the standard vessels for housing adequacy—through ownership and tenancies—and the latter serves as a welfare state counterbalance to a pure law-and-economics of dwellings. In this second sense, within constitutional texts that recognize both the social function of property, in line with Catholic social doctrine,Footnote 5 and a right to housing, the latter is partly construed as an extension of the former. Under the 1978 Spanish Constitution, for instance, Article 47—enshrining an unenforceable right to decent housing—has been long understood as a complex of directives that primarily specify the normative implications of the social function of property in relation to dwellings.Footnote 6 Contemporary activism, moreover, routinely promotes the constitutionalization of the right to housing as a political and normative counterweight to economic freedom apotheoses.Footnote 7 This unveils a key, albeit familiar, conceptual point: The constitutionalization of rights to housing generally embodies public interests that are fundamentally antagonistic to purely mercantile uses of private property.Footnote 8 The Constitutional Court of Portugal, for instance, includes Article 65—direito à habitação—among the normative sources of the “social values” that may justify property restrictions within the “economic, social, and political program of the Constitution.”Footnote 9 In constitutions lacking a right to housing, public interest needs related to housing provision typically find support in either broad social clauses—social obligation and social state norms being the classical examples—or in more general statutes of limitations of civil and political rights.
This Article operates under two central assumptions. First, I conceptualize property as a continuum ranging from natural law basics to Léon Duguit’s pure instrumentality to societal welfare,Footnote 10 whose meaning depends on the situational positioning of its political and regulatory yardstick. This construction aligns with the basic tenets of European social constitutionalism and with the regulation mandates embedded in constitutional property clauses, which share such competitive pluralism while standardizing elements of legislative latitude, flexibility, and adaptability.Footnote 11 It further resonates with the existential tension in European Union law between the strong protection of economic market freedoms and the limited unionization of their social repercussions.Footnote 12 The conceptualization, moreover, intersects with a second relevant conceptual continuum, being the one between political and legal constitutionalism, as the express textualization of social values does contribute to public interest ordering.Footnote 13 In this sense, and in line with progressive property theories, property can be broadly reconstructed—in an Alexian fashion—as a bundle of optimization principles aimed at a range of disparate values, including life, human flourishing, physical security, and self-determination.Footnote 14 Against this value pluralism, the broader the horizon of textually contemplated social citizenship values and objectives, the weaker the case for minimal democracy and deregulation-lenient standards of constitutional interpretation. As recently reinstated by Rachael Walsh in the Irish context, the inverse can also hold true: Sufficiently broad textual clauses can still justify a progressive orientation of property hermeneutics.Footnote 15
Second, the social democratic case against unaffordability and gentrification—as phenomena that jointly contribute to social stratification and thus the undermining of social citizenship values—is easily made along the lines of basic welfare state justifications. The argument stems from the general recognition of homes as essential to individual dignity and from the multiple ruptures to equality that social stratification entails. This view was taken, notably, by the European Court of Justice (ECJ) in the Cali Apartments decision,Footnote 16 alongside a plurality of national constitutional tribunals,Footnote 17 and foreshadowed in the dissent by judges Pinto de Albuquerque and Vehabovič
in Garib v. Netherlands before the European Court of Human Rights (ECtHR).Footnote 18 The point is further reinforced by anti-discrimination standards before both the ECJ and ECtHR, with the interpretative questions raised in the Danish Ghetto case offering particularly illuminating insights into the possible exclusionary effects of public housing management.Footnote 19 Accordingly, renting unaffordability and gentrification, as byproducts of property relations, can be understood as regulatory imbalances within a social democratic or progressive construction of constitutional property.Footnote 20 Clearly, this conceptual framework is strictly tied to the specifics of modern housing crises, in the form of imbalances between the supply and demand of rental units, typically affecting large urbanizing centers characterized by significant economic, cultural, or recreational appeal, and the continued dedication of a substantial portion of the housing stock to transient population groups.
Against this backdrop, and in line with the public law developments detailed in Section C, this Article describes the recalibration of renting profitability and the regulatory—or “soft”—asymmetrization of housing governance—as opposed to the “hard” option of constitutional amendment—as defining features of what I describe as the housing challenge to neoliberal homeownership in Europe. This generally points to a Polanyan and adversarial welfare reaction to the negative social externalities generated by the commodification and related depoliticization of the housing sector as standard precincts of neoliberal economic governance. Methodologically, the analysis operates at the intersection of comparative public law, comparative constitutional interpretation, the European Convention of Human Rights (ECHR), and European Union law—primarily treaties and the Nice Charter—relying on an integrative view of the European constitutional space.Footnote 21 Both under the ECHR and EU law, general or shared principles of constitutional law inform supranational interpretations of rights and principles, and courts have historically been attentive to these pathways of internal consistency.Footnote 22 The EU constitutional dimension is, in this sense, approached both in its dynamic interaction with comparative constitutional standards as well as an autonomous, albeit limited, normative landscape of social checks on economic market freedoms. In the area of renting, this essentially encompasses regulations on service provisions, consumer protection and anti-discrimination law.
The anticipated outcome is both conceptual and descriptive. It aims to achieve “concept formation through multiple descriptions of the same constitutional phenomena” across countries while also engaging in “normative or philosophical contemplation of abstract concepts.”Footnote 23 The objective is “to study the entire constitutional forest, not individual constitutional trees,”Footnote 24 with the forest understood as a hypothesized post-neoliberal turn in the constitutional politics of property, in relation to rental unaffordability and gentrification crises in Europe. To this end, the analysis draws on comparative legislative developments and related judicial trends, with particular emphasis on Germany as a prototypical case study.Footnote 25 On the one hand, the Mietpreisbremse, the Mietendeckel, and the Zweckentfremdungsverbot are widely regarded as European benchmarks of housing legislation, and have exerted significant influence in comparative legislative innovations. On the other hand, the endogenous clash within Article 14 of the German Basic Law between the Eigentumgarantie and the Sozialbindung perfectly epitomizes the antagonism embedded in the politics of property utilization and regulation.Footnote 26
Two Substantive Challenges to Neoliberal Urban Homeownership
Much of the traditional legal discourse on housing crises has revolved around ownership/destitution dichotomies, reflecting a post-traumatic understanding of these occurrences centered on post-war shortages. However, this dichotomous rigidity is alien to modern unaffordability and gentrification crises, whose standardization follows structural sociological and political transformations rather than isolated traumatic causes—forces expected to consolidate further in the coming decades. According to the European Commission, urbanization levels in the EU are projected to increase from 75 percent to 83.7 percent by 2050.Footnote 27 This urban push is not expected to follow geographical symmetry; while major attractive cities should see significant demographic and economic growth, nearly half of Functional Urban Areas—cities combined with their commuting zones—are expected to shrink, with 12 percent of cities projected to lose more than a quarter of their inhabitants by 2050.Footnote 28 As reliance on tenancies continues to rise—EU homeownership rates have steadily declined over the past two decadesFootnote 29—urbanization should further strain rental housing markets. Meanwhile, despite the overall EU resident population remaining stable, estimates for 2030 suggest a modest yet sustained growth in international tourism.Footnote 30
Against this theoretical backdrop, two distinct clusters of constitutional tensions define the contemporary landscape of the housing challenge to neoliberal homeownership in Europe. This occurs, once again, in a context of decreased accessibility to home purchases—typically addressed through housing finance policy—where unaffordability and gentrification crises raise questions from the perspective of the growing functional equivalence between tenancies and homeownership.
Profitability (Individual/Social Utility Tension)
Property is defined by an inherent duality.Footnote 31 On one side, the emancipatory function of ownership as a vehicle for individual liberty has been foundational to contractarian justifications of state power and classical liberal constitutionalism. This aspect of property rights, which emphasizes the defensive function of property, is widely recognized in both national constitutions and international instruments, particularly in Article 1 Protocol 1 to the ECHR and Article 17 of the Nice Charter.Footnote 32 These provisions underscore such fundamental liberty core as forming the essential content of the right to property, typically interpreted to include the profitability of owned assets as a structural guarantee of economic liberalism. In the area of rent control, for instance, regulated rates must, at a minimum, exceed maintenance and taxation costs in order to preserve the economic viability and minimal embedded value of the dwelling for the landlord.Footnote 33
On the other side, ownership also entails obligations to the broader public interest, as the private enjoyment or exploitation of goods should not, in principle, adversely affect community living. European constitutions generally reject libertarian constructions of property, delegating the reconciliation of its personal and social relevance to the contingent latitude of elected legislatures against standards of legislative reasonableness and non-arbitrariness.Footnote 34 The social function of property, moreover, is integral to both Article 1 Protocol 1 of the ECHR and Article 17 of the Nice Charter, reflecting such broader comparative convergence around a social democratic construction of ownership.Footnote 35 Within this harmonized constitutional framework, the composition of ownership regimes fundamentally follows the political economics of property and public interest determinations made by political bodies. In turn, the constraining force of identified general interests, as they pertain to the social relevance of property rather than individual interests, is generally relative to their sociopolitical basis and their constitutional or conventional underpinnings.
The rising functional equivalence between tenancies and homeownership, coupled with the surging profitability of renting in high-demand urban centers, highlights a critical failure in this domain. Simply put, this concerns the divide between the economics of property exploitation and their social repercussions that is entrenched by the commodification and financialization of the housing sector, as phenomena that drive “the subversion of housing and land as social goods in favor of their value as commodities for the accumulation of wealth.”Footnote 36 This utilitarian orientation of property ethics, as applied to housing assets, operates at both macroeconomic and microeconomic levels. In the first sense, many of these transformations—largely centered around the securitization of mortgage debt and the increased significance of residential real estate as an asset of investment and wealth accumulationFootnote 37—are presented and perceived as macroeconomic necessities, often accompanied by minimal electoral contestation.Footnote 38 Accordingly, contemporary activism strives to re-politicize housing provision by problematizing globalized neoliberal capitalism and emphasizing both the personal and social significance of housing policy and the democratic pluralism embedded within it—countering the authoritarianism inherent in the commodification of the housing sector.Footnote 39 On a more localized scale, instead, commodification has expanded horizontally with the rise of short-term rentals in the platform economy. These options, with their remarkable accessibility and relatively low transaction costs, leverage rent gaps—the “situation where the actual economic returns to properties tend to decline or stagnate while potential economic returns tend to increase”Footnote 40—thereby facilitating wealth accumulation as a stabilized and widely shared function of homeownership in high-demand cities.Footnote 41 While short-term letting continues to serve a prominent income-integrating function, its unregulated proliferation has chiefly contributed to small-scale commodification.
Against this backdrop, the profitability challenge unfolds as the regulatory search for optimum points between structural guarantees of economic liberalism, which climax in neoliberal economic governance, and the social democratic foundations distinctive to an integrative construction of constitutional property in the European space. As I will argue in Section D, the post-neoliberalization of homeownership through profitability relativism aligns with both a socially embedded conception of the rule of law as well as with an accurate understanding of democratic liberalism’s relationship to markets. As detailed in Section C, in particular, responses to neoliberal property ethics are especially evident in four emerging regulatory areas, each addressing distinct facets of the profitability challenge: (i) Housing agency fees; (ii) short-term lettings; (iii) rent controls; and (iv) the taxation of vacant housing units. While comparative policy approaches to date reveal notable oscillations between radical and moderate interventions, such areas of profitability recalibration are emerging as shared features of the regulatory state. The urbanization trends discussed at the outset of this section further reinforce their growing salience.
Geographical Asymmetry (Sociopolitical/Administrative Tension)
A second significant challenge to neoliberal urban homeownership arises from the divide between the sociopolitical dynamics and governance mechanisms of modern housing crises, which unevenly affect national and municipal territories. In rent control legislation, for instance, this translates into two distinct deviations from the equality principle: The imposition of rent caps in specific housing markets—whether across entire municipalities or within individual neighborhoods—and the local indexation of prices on a neighborhood-by-neighborhood basis. While these departures from geographical equality are sensible and noteworthy—and comparative case law generally supports their constitutional legitimacy subject to proportionality requirements—the comparatively weak constitutional status of cities combined with the proclivity of national politics to ostracizing greater decentralization, remain highly problematic.
From a competency standpoint, in particular, comparative public law developments unveil tensions between traditionally centralized competencies for civil law and economic governance—which encapsulate the bulk of the profitability challenge—and decentralized attributions related to an increasingly obsolete construction of public housing policy. The dynamic is visible, inter alia, in governance conflicts over vacant housing taxation, where central authority over property regulation collides with the decentralization of extra-fiscal tributes. To give an example, Catalonia’s Decree-Laws 17 of 2019 and 1 of 2020, along with their reintroduction through Decree-Law 37 of 2020, were invalidated by the Spanish Constitutional Court for unduly intervening in civil property relations through vacant housing regulations.Footnote 42 The Court found the legislation to impose a “general” and “direct” regulation of the property rights regime over housing assets, exceeding the limited public housing policy bases for decree-laws to intervene on property, generally linked to the administrative “ordering and promotion” of the housing sector.Footnote 43 The same fate befell the subsequent regional Law 11 of 2020, which introduced a German-inspired regional rent control. As expressed in Decision 37 of 2022, Catalonia’s regulatory attempts at the content of contractual relations betrayed the rationale underlying the centralization of civil law as a “structural guarantee of a single national market,” thus undermining the need for “uniform” contractual relations for “all economic agents throughout the national territory”Footnote 44 in a sector of heightened and strategic importance such as housing. A similar rationale underpinned, a contrario, the Constitutional Court’s validation in Decision 79 of 2024 of the newly introduced nationwide rent indexation system, where the judges found the civil law character of rent capping—as limit on rent increases—and the economic legislation nature of rent indexing as legitimizing national level intervention, with no invasion of regional attributions on public housing, as these remain functionally tied to publicly owned or subsidized housing.Footnote 45
The German controversy surrounding the Mietendeckel highlighted a similar friction. When adopting the state rent control, the Berlin House of Representatives exploited an apparent loophole created by the 2006 Föderalismusreform, which effectively transferred housing policy from concurrent attributions to the states’ residual competence under Article 70 of the Basic Law.Footnote 46 Given that Länder have traditionally been competent for determining public housing rent prices, the Berlin Senate argued that this competence had to include rent control regulations for the private sector.Footnote 47 Amid intense debate and regulatory uncertainty, the Federal Constitutional Court invalidated the Mietendeckel in March 2021, ruling that rent control falls exclusively within the concurrent competence title for civil law—bürgerliche Recht—and that the existence of federal regulations on the same issues—specifically, the Mietpreisbremse—barred state intervention.Footnote 48 As the Court explained, the traditional centralization of civil law regulations reproduces a liberal guarantee of contractual autonomy, which acts as a basic structuring principle for the whole Constitution and a defensive stronghold against state organicism. Nonetheless, while civil law unity in Germany is not per se tied to a definite constitutional political economy—consistent with the longstanding interpretation of the Basic Law as neutral in this regardFootnote 49—and remains primarily a matter of political and historical convention, the Mietpreisbremse, as interpreted by the Federal Constitutional Court in 2019, left virtually no political latitude for adaptation by the states.Footnote 50 It thus introduced a minimal degree of governance asymmetry, based almost entirely on empirical data, effectively foreclosing further democratic engagement at the municipal level.
Overall, modern housing crises offer valuable insights into the specific strains placed on constitutional structures of administrative decentralization by the increasingly asymmetrical urbanization of European territories—issues that have gained significant traction in comparative constitutional theory.Footnote 51 This is largely due to the broader evolution of cities into laboratories for democratic deliberation and human rights compliance, which positions them at the forefront of contemporary decommodification efforts.Footnote 52 Politically, in fact, rental unaffordability and gentrification problems gain traction at the municipal level, where their effects are most immediate and social movements, including “right to the city” activism, coalesce.Footnote 53 National-level intervention, however, is routinely required to enable local administrations to take effective action, recasting both political timing—the disparity in response times between municipal and national law and policymaking—as well as ideological difficulties. Indeed, while regulatory interventions tend to receive less support from proponents of economic liberalism compared to, for example, construction incentives, progressive politics tend to fare better in large urban centers than at the national level. Moreover, national governments may often be unwilling—or politically unable—to grant more than minimal latitude to sub-national entities, despite relative openings in comparative frameworks on multi-level civil law overlaps, as with the Sperrwirkung doctrine under the German Basic Law. The Mietpreisbremse well illustrates this reluctance in the specific context of rent control.
In sum, the asymmetrical rise of renting unaffordability and social stratification challenges geographical insensitivities in the centralization of civil law production as a partly redundant classical liberal guarantee of economic liberalism and private autonomy, insofar as it makes municipal democratic engagement with housing crises largely dependent upon national political will. It also calls into question the growing obsolescence of traditional distinctions between private and public housing—once sustained by robust public housing stocks and social housing sectors—against the current backdrop of heavily privatized and commodified housing sectors, and amid a growing recognition that cities with greater constitutional flexibility and enhanced fiscal and legislative authority are generally more adept at addressing housing rights problems.Footnote 54
Geographical and Public Interest Determinants of Urban Homeownership’s Transformation
The transformation of neoliberal homeownership is primarily driven by the emergence of public interests in housing affordability and inclusive urban geographies within areas of legal regulation that address the profitability challenge, limited to geographical areas suffering from market imbalances within unevenly urbanized national territories. Whether anchored in right-to-housing provisions—which remain relatively uncommon in EuropeFootnote 55—or broader constitutional clauses such as the social state principle or the social function of property, these public interest goals serve as regulatory counterweights to the commodification and financialization of the housing sector. Such tension between economic and social rationales is also reflected in the politics of litigation, where landlords, builders, or housing agents associations typically champion the primacy of economic freedom to dispute regulatory interventions. In Spain and Germany, for instance, nearly all constitutional challenges to housing affordability measures originated from individual or institutional appeals led by parties aligned with strong defenses of classical economic liberalism.
Housing Mediation Fees
Excessive competition for rental housing in high-demand cities tilts the balance of interest in favor of landlords over prospective tenants, often leading to demanding conditions being imposed by housing agencies in exploitation of their bargaining strength. In response, several European countries have revised their brokerage regulations over the past decade to bolster the position of prospective tenants, with some shifting the costs of mediation services entirely onto landlords. These measures, as restrictions to contractual freedom, generally fall within centralized competencies for civil law.
In Germany, the Mietpreisbremse amended brokerage legislation, Gesetz zur Regelung der Wohnungsvermittlung–WoVermRG, by instituting the “customer principle” (Bestellerprinzip), which holds that the individual who arranges the mediation service shall bear the cost of the relevant fees.Footnote 56 The Federal Constitutional Court upheld the approach in 2016, ruling that the customer principle legitimately restricted professional freedom—Article 12 of the Basic Law—to rebalance economic and social conditions on rental housing markets as a welfare state intervention.Footnote 57 According to the Court, preventing the financial overburdening of prospective tenants constituted a sufficiently compelling public interest to justify these limitations. At the same time, said limitations could not be outweighed by the existing potential for minor losses to housing agents, as they remain able to conduct their business by charging landlords.Footnote 58 On competency, instead, the Court excluded—in line with consolidated interpretative standards—that the economic repercussions of these regulations could suffice to assign the intervention to the centralized competence for economic governance, rather than social tenancy law.
Similar measures were adopted in Belgium, where versions of the customer principle are recognized in regional housing codes, and in the Netherlands, through a ban on “double commissions” in Articles 7:417 and 7:427 of the Dutch Civil Code.Footnote 59 In Austria, a milder version of the Bestellerprinzip was introduced into civil law in 2023 through amendments to the Brokerage Act (Maklergesetz – MaklerG). Under Section 17a of the MaklerG, individuals seeking apartments remain responsible for mediation fees when they engage a real estate agency to arrange a rental agreement for an apartment over which the agency did not have a prior mandate.Footnote 60 In February 2025, the Austrian Constitutional Court upheld the compatibility of this provision with constitutional equality requirements, emphasizing the importance of facilitating access to adequate housing for middle- and low-income population groups.Footnote 61 The Court based its reasoning on a dual rationale: first, that apartment seekers hold comparatively weaker bargaining power; and second, that landlords are the principal beneficiaries of contracted brokerage services. The judges, moreover, found no interference with the property rights of landlords. Finally, a decisive approach was taken by the Spanish Parliament with Housing Law 12 of 2023, Ley de Vivienda, which amended Article 20 of the Law 29 of 1994, Ley de Arrendamientos Urbanos, to assign all expenses related to “real estate management and contract formalization” to the lessor.Footnote 62 This final change built on prior amendments to Article 20, beginning with Law-Decree 21 of 2018, which shifted agency costs to the lessor for services arranged by this, when a legal entity. Subsequently, Law-Decree 7 of 2019 had removed the service provision clause altogether, mandating that all housing agency fees be borne by legal persons acting as lessors.
Contrarily to the element of governance asymmetrization generally outlined here, legislative changes to the regulation of rental housing agency fees typically occur through uniform civil law regulations with minimal geographical differentiation. France alone has taken a geographically nuanced approach with the 2014 Loi ALUR, which the Constitutional Council has deemed compatible with constitutional rights to property and contractual freedom.Footnote 63 The law distinguishes, first, between fees for minor services—such as visits, inventory costs, file preparation, and drafting of the lease—that are to be shared by tenants and landlords, and those that are solely the responsibility of landlords. Second, it establishes a framework for capping the maximum share of fees payable by tenants, based on the type of services provided and the geographical location of the rental property, whether in a zone très tendue, a zone tendue, or outside these designated areas, or zone non tendue.Footnote 64 This three-tiered framework points to different levels of severity of market imbalances in the supply and demand of rental units, subject to their administratively centralized geographical delimitation. Only the fees related to inventory preparation are capped nationwide, whereas the maximum for property visits, file preparation, and lease drafting are tied directly to local demand excess—with the highest caps applying in zones très tendues.
Short-Term Rentals
Short-term rentals represent a crucial area where efforts to ensure housing affordability and spatially just cities raise critical questions as regards restrictions on the economic freedom prong of constitutional property. The regulatory complexity of this sector is exacerbated by the diverse administrative competencies that govern it, which result in a fragmented landscape characterized by national, federal, regional, or state, and municipal interventions, each designed to address the substantial reduction in housing units available for long-term residency. Measures taken include quantitative limitations, residence requirements, temporal restrictions, such as maximum and minimum stay caps, as well as zoning and location limits.Footnote 65
The primary pathway for short-term rental regulation, generally speaking, involves preventive administrative authorization within residential areas experiencing market imbalances.Footnote 66 Similar schemes aim to balance private economic activity with public interests related to the efficient use of existing housing stock. From a competency standpoint, authorization regimes follow, politically, municipal efforts to combat over-tourism and, administratively, the prevailing decentralization of urban planning and zoning attributions.Footnote 67 In practice, however, the viability of municipal intervention often depends on the adoption of specific authorizing or integrative frameworks typically at the national level. Examples include nationwide uniform regulations, such as the 2022 amendments to the Dutch Housing ActFootnote 68 or France’s Tourism and Housing Codes,Footnote 69 as well as regional-level differentiation, as seen in Belgium, and city-specific concessions.Footnote 70 Within these frameworks, the scope for sub-national intervention is typically limited. In 2013, the Berlin House of Representatives adopted the Prohibition of Misuse Law, Zweckentfremdungsverbot Gesetz–ZwVbG, under the authorizing framework of Article 6 Section 1 of the 1971 Act on the Improvement of Tenancy Law, Gesetz zur Verbesserung des Mietrechts—MRVerbG, which allowed state governments to enact ordinances imposing—limited to municipalities experiencing market imbalances—that “housing may only be used for purposes other than residential use with the approval of the body designed by the State Government.”Footnote 71 Starting May 1, 2014, the use of housing units for short-term rental activities in areas of Berlin designated by ordinance, whether the entire State or individual districts, required preventive authorization from competent housing authorities, which could be granted if “overriding public interests or legitimate private interests outweigh the public interest in preserving the affected housing.”Footnote 72 The ZwVbG was successively tightened in 2018, 2022, and again in 2024. Other Länder have similar legislation in place, requiring, on more permissive or restrictive bases, the preventive issuance of administrative permits for short-term rentals to operate in tensed housing markets.Footnote 73
The substantive constitutional legitimacy of similar measures is generally undisputed, as short-term rental regulations are treated as standard instances of property regulation under its social relevance. In 2022, the Federal Constitutional Court of Germany indirectly reaffirmed the constitutionality of the 2013 ZwVbG, which reiterated the justificatory foundation of the 1971 MRVerbG—namely, the guarantee of “sufficient housing under reasonable conditions” within the framework of the Sozialbindung of property.Footnote 74 In declaring the case inadmissible, the Court reaffirmed the regulatory nature of constitutional property—already central to its 1975 decision and reiterated in prior dismissals of challenges to the ZwVbG Footnote 75—under Article 14 of the Basic Law, to which both building law and misuse legislation, Wohnraumzweckentfremdung, were deemed integral.Footnote 76 In Spain and Portugal, the issue has arisen inter alia in the context of short-term rental bans within statutes of homeowners’ associations, which courts have interpreted permissively. In a landmark 2022 civil decision, the Supreme Court of Portugal considered the express dedication of sections of multi-owned buildings to residential purposes as a standard incident within property’s regulation mandate under Article 62 of the Constitution, and found such provisions to validly exclude short-term rentals under applicable urban planning legislation.Footnote 77 In so doing, the Court gave particular weight to the distinction between residential and commercial purposes in leasing. The Spanish Supreme Court reached an analogous conclusion in October 2024, in two consecutive rulings interpreting Article 17 of Ley 49 of 1960 Ley de propiedad horizontal as amended by Royal Decree 7 of 2019, which was a major regulatory intervention addressing various housing-related issues.Footnote 78 In assessing whether bans on short-term rentals infringed the essential economic content of homeownership, the Court emphasized both the permissive construction of regulatory limitations in the area of associative homeownership as well as the clear legislative intent to prioritize residential leases over touristic or commercial uses.Footnote 79 Accordingly, it concluded that such prohibition could not be deemed to alter the essential content of property.
A prominent unifying framework derives from the European Court of Justice’s 2020 Cali Apartments decision, where French regulations requiring preventive authorization for short-term letting activities in Paris were upheld as consistent with the free provision of services. In line with Advocate General Bobek’s opinion, the Court recognized “short-term letting” activities as having a “distinctly economic nature” within the tourism sector, thereby falling under the Services Directive (2006/123/EC).Footnote 80 While the Advocate General’s opinion had emphasized the social function of the rights enshrined under Articles 16 and 17 of the Nice Charter—arguing that, in accordance with Article 52(3) of the Nice Charter, the rights afford broad latitude in designing restrictions—the Court assessed the French measures exclusively under Article 9(1)(b) and (c) of the Services Directive, which demand an “overriding reason relating to the public interest”Footnote 81 and means-ends proportionality for an authorization regime to be lawful. For these purposes, it recognized that “combating the rental housing shortage” and addressing “worsening conditions for access to housing and the exacerbation of tensions on the property markets” were valid public interest reasons.Footnote 82
While the approach aligns with the Court’s previous stances on social policy objectives and the protection of the urban environment,Footnote 83 the Cali Apartments decision marked a more proactive recognition of housing affordability as a compelling argument for balancing residential and non-residential property uses. In the previous Libert v. Gouvernment Flamand, the Court had simply conceded that promoting housing affordability for financially weaker population groups “can constitute overriding reasons in the public interest” when such groups are “effectively excluded from the property market owing to the arrival of financially stronger population groups.”Footnote 84 That case, consistent with the earlier Sint Servantius ruling, had thus merely hypothesized the relevance of housing affordability and spatial justice, while effectively reinstating a default prioritization of free market logics where social considerations remain “an irritation of the internal market rules.”Footnote 85
Rent Controls
Among various regulatory adjustments, rising housing costs are driving the expansion and strengthening of rent control legislation across Europe. As of 2021, only thirteen out of twenty-seven EU member states had no form of rent price regulation.Footnote 86 This variation can be attributed to several factors, including strong homeownership cultures, well-functioning social housing sectors, effective housing subsidy policies, or the relative insularity of the renting sector in certain Eastern European countries.
Rent controls intersect with constitutional property rights by constraining the economic exploitation of housing assets in light of countervailing public interests relevant to property’s social function. In Germany, for instance, both the 2015 Mietpreisbremse and the 2020 Mietendeckel were justified by the Bundestag and the Berlin House of Representatives through reference to the Sozialbindung in Article 14 of the Basic Law, and the Federal Constitutional Court has confirmed the relative intensity, within the property framework, of public interests in housing affordability and inclusive urban geographies, negatively defined against the risk of socially stratified cities, in contrast to private profit interests.Footnote 87 Similarly, Catalonia’s Law 11 of 2020 and the subsequent national Housing Law 12 of 2023 (Ley de Vivienda) sought to enhance rental affordability by regulating the social function of property—Article 33—in alignment with the constitutional right to housing—Article 47.Footnote 88 In Decision 26 of 2025, the Spanish Constitutional Court deemed this legislative objective compelling enough to justify rent control legislation, which the judges found to only “marginally” affect constitutional property (afectación tangencial), without compromising its essential content (recognoscibilidad).Footnote 89 Much like the German Mietpreisbremse decision, the Spanish Court weighed the classical liberal and neoliberal arguments for rent deregulation against the profitability relativism embedded in Article 33 of the Spanish Constitution and Article 1 Protocol 1 of the European Convention of Human Rights, ultimately reaffirming that “housing speculation” finds no protection under Article 33 of the Constitution and is inherently contrary to Article 47, insofar as the right to housing embodies a constitutional mandate to prevent it.Footnote 90
In France, the 2014 Loi ALUR introduced nationwide rent caps, framing these as property restrictions justified by the constitutional goal of ensuring decent housing for all—a rationale that the Constitutional Council upheldFootnote 91 and the Council of State later reiterated.Footnote 92 Similar considerations apply to Ireland, where the establishment of rent pressures zones under the Planning and Development (Housing) and Residential Tenancies Act 2016 was designed to uphold the “principles of social justice” and the “exigencies of the common good” as constraints on the unchecked exploitation of property rights under Article 43 of the Constitution. In this context, amidst ongoing debates on the potential constitutionalization of a right to housing in Ireland, Rachael Walsh has convincingly argued that the Irish property clause retains a sufficiently broad scope to support the legislative pursuit of more equitable socio-economic equilibria.Footnote 93 Drawing a contrario from the judicial treatment of economic crises and austerity measures in shaping public interest determinations, Walsh suggested that the empowering provisions of Article 43 remain compatible “with a robust legislative response to problems with housing provision.”Footnote 94
From the standpoint of the geographics of rent controls, these typically involve two distinct deviations from the equality principle: The imposition of caps in tense housing markets, either across entire municipalities or within individual neighborhoods, and the local indexation of prices on a neighborhood-by-neighborhood basis. The case studies of Germany, Spain and France exemplify these characteristics. In all three instances, the local indexation of rent prices depends on the administrative delimitation of tense housing markets (angespannten Wohnungsmärkten; mercado residencial tensionado; zones tendue or très tendue) via ordinance—as reflected in Article 18 of the Spanish Housing Law 12 of 2023, Section 556d of the German BGB,as introduced by the Mietpreisbremse, and Article 140 of the 2018 Loi ELAN. These determinations are based on legislatively specified benchmarks that define housing unaffordability for rent regulation purposes, typically with a limited duration and mechanisms for renewal. For example, under the Mietpreisbremse, declarations last for a maximum of five years, while Article 18(2)(d) of the Spanish Housing Law 12 of 2023 provides for a three-year duration alongside with an annual prorogation mechanism. Once tense markets are geographically delimited, this allows for the adoption, via ordinance or decree, of local indexes for median or maximum rent prices, which are regularly reviewed and updated to reflect market conditions.
As anticipated, these geographical deviations from formal equality do not encounter constitutional obstacles, provided they are based on data, justified by compelling general interests, and undertaken in accordance with the substantive and procedural constraints established by the relevant authorizing frameworks. Similar views have been affirmed, among others, by the French Council of State and the Federal Constitutional Court of Germany.Footnote 95 The latter, in particular, has a longstanding case law on the conditions governing the local comparative rent (ortsübliche Vergleichsmiete) as a metric for rent indexation in line with the equality principle.Footnote 96
Vacant Housing
A fourth and final area where regulatory changes in property law are driven by public interest goals in housing affordability and inclusive urban geographies is the taxation of vacant housing. While the criteria defining vacancy vary across jurisdictions, regulations generally target properties in high-demand areas that are deliberately left empty—either as investment properties or because they are not primary residences—thereby contributing to the inefficient utilization of the existing housing stock. To encourage the reintegration of such properties into the rental market and promote housing affordability, these taxes are often incremental, calculated as a percentage of the property’s value, and may increase either with each successive year of vacancyFootnote 97 or owing to progressively bolder government efforts to address housing shortages.Footnote 98
Vacancy taxes are generally construed as extra-fiscal tributes falling within the regulatory mandates embedded in constitutional property. For instance, in Germany, under the 1971 MRVerbG, state governments have the authority to identify, via ordinance, tense housing markets where levies may be imposed. Some Länder, including Baden-Württemberg and Rhineland-Palatinate, have implemented such taxes framing inobservances as administrative offences. In Spain, similar tributes have been expressly linked to the social function of property and the Constitutional Court has underscored how, unlike property tax, vacant housing taxation is “fundamentally extra-fiscal” as it “seeks to incentivize the rental of vacant properties.”Footnote 99 A similar rationale underpins France’s Taxe sur les logements vacants, which has been regulated since 1998 under Article 232 of the General Tax Code. The Constitutional Council has consistently upheld the legislative framework, affirming its compatibility with the property rights regime and fiscal equality requirements. On the latter point, in both its 1998 and 2012 decisions, the Court emphasized the extra-fiscal nature of the vacant housing tax, excluding its subjection to the universality requirements set for fiscal tributes as long as it is only levied on habitable dwellings in high-demand areas that are deliberately left vacant by homeowners.Footnote 100
Vacancy taxes typically feature elements of geographical asymmetry, creating tensions between the national uniformity of property taxes and the decentralization, as relating to public housing policy, of such extra-fiscal levies. As anticipated, since 1998 the French Taxe sur les logements vacants has been tied to municipalities, identified by decree, belonging to “areas of continuous urbanization of–originally–more than two hundred thousand inhabitants where there is a market imbalance between the supply and demand for housing.”Footnote 101 In 2013, the Finance Act 2013 amended Article 232 of the General Tax Code, reducing the minimum vacancy period from two to one year and further refining its geographical scope to areas of more than fifty thousand inhabitants “where there is a marked imbalance between the supply and demand for housing resulting in serious difficulties in accessing housing throughout the existing residential stock.”Footnote 102 While the identification of said areas is centralized in France, municipalities remain responsible for their implementation. In Austria, Article 11(1) of the Constitution was amended in 2024 to overcome a 1985 decision by the Constitutional Court, which invalidated a 1982 Vienna tax on unrented apartment due to its extra-fiscal nature, treating it as a public housing management measure that encroached on the centralized competence for public housing policy.Footnote 103 The 2024 federal intervention responded to the regulatory emergence, at the state level, of vacancy taxes as ordinary tools to address housing shortages, with Styria, Salzburg, Tyrol and Vorarlberg passing legislation between 2022 and 2024. These measures empowered municipalities to set vacancy tax levels—except for Tyrol, where municipalities were mandated to do so—within broader state legislative frameworks, while in certain instances drawing explicit distinctions based on the severity of local market imbalances—Tyrol, for example, permitted municipalities facing acute housing pressure to double applicable rates. The text of Article 11(1) of the Austrian Constitution now expressly attributes to the states legislative competence for “the levying of public charges for the purpose of preventing non-use or under-use” of housing units.Footnote 104
Also in Germany and Spain, these taxes are generally limited to tense housing markets identified by state/regional governments via ordinances. In Spain, in particular, autonomous communities are competent to impose extra-fiscal tributes aimed at achieving adequate housing and regional legislation distinguishes between areas with tense housing markets, where vacant housing taxes may be imposed, and areas without.Footnote 105 Under the contentious Catalan Law 14 of 2015, lower courts have confirmed the compatibility of the geographical asymmetry of vacant housing taxes with the constitutional equality principle.Footnote 106 Lastly, in Portugal—as it happens elsewhere, for instance in the United Kingdom—local municipalities have the authority to increase the property tax (IMI) rate on vacant properties located in areas of urban pressure, following the novelties brough about with Decree-Law 67 of 2019, which modified the previous Decree-Law 159 of 2006.
Housing as Countermovement: Democratic Liberalism and Inclusionary Property Relations
The starting point of this Article has been the assumption that, within a social democratic construction of constitutional property, gentrification and housing unaffordability may be understood as regulatory imbalances attesting to utilitarian proclivities in property law. Within the European constitutional space, the Cali Apartments ruling, alongside the Mietpreisbremse and Mietendeckel case law in Germany, other relevant national jurisprudence, and the dissent by judges Pinto de Albuquerque and Vehabovič in Garib v. Netherlands before the ECtHR, collectively underscore the increasing recognition, within the framework of property’s social relevance, of the diverse ways in which housing unaffordability and social stratification impair individual dignity and substantive equality.Footnote 107 This perspective aligns with welfare-based approaches to housing provisionFootnote 108 and basic social state constitutional narratives, which gain amplified gravity in the current landscape of increasing quantitative and functional equivalence between tenancies and homeownership in an ever-more urbanizing Europe.
Profitability Relativism as Interpretative Benchmark
The central argument of this Article is that, descriptively, the housing challenge to neoliberal homeownership—as explored in Sections B and C—is closely tied to the recalibration of renting profitability and the regulatory or “soft” asymmetrization of housing governance—as opposed to the “hard” option of constitutional amendment—under existing constitutional structures on administrative decentralization. This asymmetrization is essentially coextensive with the regulatory opening of deliberative spaces for sub-national entities, allowing for greater adherence to the local specificities of modern housing crises in contrast to: (i) Localist insensitivities embedded in the centralization of macroeconomic governance as guarded by monopolies over civil law and economic legislation production; (ii) the increasing redundancy and obsolescence of traditional public housing policy attributions within ever-privatized and commodified housing sectors; and (iii) the risk of ostracism or political unviability at the national level of pursuing legislative delegation to the fullest extent permitted by existing constitutional structures. This complex dynamic represents, in general terms, a post- or counter-neoliberal movement that internalizes both the adversarial nature of the question sociale and the reactive character of property regulation.
To this end, profitability relativism is central to decommodification efforts, and its reemerging safeguard within constitutional property politics marks a critical moment in the problematization of neoliberal governance. In this context, sociopolitical and legal convergences among national constitutions, Article 1 Protocol 1 of the European Convention of Human Rights and Article 17 of the Nice Charter, delineate a shared constitutional space of considerable legislative latitude in reconciling the economic and social dimensions of property. The interpretative treatment of rent control legislation offers a particularly instructive example, as its substantive legitimacy can be understood against an essentially bipartite framework. On one hand, controlled rent levels must uphold minimal safeguards for the “essential content” and self-emancipatory function of ownership, mirroring conceptual distinctions between deprivation, with related compensation requirements, and regulation that are integral to European constitutionalism.Footnote 109 In the Mietpreisbremse decision, the Federal Constitutional Court firmly reiterated that a landlord’s freedom to economically exploit property does not cover claims to maximum profits.Footnote 110 In January 2025, the Spanish Constitutional Court found the nationwide rent control introduced with Housing Law 12 of 2023 to only “marginally” encroach on constitutional property, without undermining its essential content, or recognoscibilidad. According to the Court, speculative property exploitation enjoys no protection under Article 33 of the Spanish Constitution.Footnote 111 The European Court of Human Rights, furthermore, has approached this distinction by examining the quantitative “difference between the maximum permissible rent under the rent control scheme and the market rental value of the flats,”Footnote 112 upholding homeowners’ claims to property profitability only when rent ceilings are abnormally low and thus undermine the economic viability of ownership—such as when rents fail to cover taxation or maintenance costs.Footnote 113
On the other hand, beyond these minimal thresholds, regulatory tensions between economic and social considerations are loosely appraised against standards of presumptive deference to legislative determinations, reasonableness, and non-discrimination. In this context, distributive fairness unfolds as a balancing issue between competing optimization principles and against overarching bans on legislative arbitrariness. Within the minimalist approach of the European Court of Human Rights, the “fair distribution of the social burden” in rent controls is, for instance, negatively assessed against criteria indicating a complete disconnection of controlled rents from free market rates, when the former only allow “minimal profits” or “extremely low returns” for landlords and thus undermine the economic viability of property.Footnote 114 The Federal Constitutional Court of Germany has long adhered to similar interpretative standards—since the early Vergleichsmiete I decision—and reaffirmed in the Mietpreisbremse decision that the quantitative fairness of controlled rents must be evaluated against a negative standard of thorough disconnection from free market rates.Footnote 115 The Court found that federal ceilings ensured limited yet regular profits, thereby maintaining compliance with Article 14 of the Basic Law. This rationale was also echoed by several lower courts, which, prior to the Federal Constitutional Court’s intervention in April 2021, had upheld the substantive constitutionality of the Mietendeckel on similar grounds.Footnote 116
More broadly, while some variability persists regarding the specific dependencies between rent regulation and free market dynamics, the exclusion of maximum profitability from property’s essential content remains a widely shared constitutional baseline. The case for a relativistic construction of profitability claims within the property framework is further reinforced by the comparatively weak status of economic initiative rights in constitutional interpretation. Austrian and German caselaw on housing agency fees illustrates, for instance, the recessive nature of agents’ profit claims, provided that their core business operations remain viable. In the constitutionality review of both the MaklerG and the Mietpreisbremse, the risk of diminished revenue for housing agencies did not affect the substantive appropriateness of rental brokerage regulations, provided that agencies could still carry out their activities with landlords.Footnote 117 Moreover, the European Court of Justice recognizes the social function of both the right to property and the freedom to conduct a business to be a common constitutional principle shared by all Member States.Footnote 118 Leveraging this consensus, the Court has shown high deference to the public interests underlying both property and business-restricting legislation, so much so that challenges to these regulations have been remarkably unsuccessful.Footnote 119 Accordingly, the freedom to conduct a business has been described as a practically recessive right of economic operators “and not to be subject to arbitrary, dominant, imposition on their action.”Footnote 120 In this sense, the “very substance” of Article 16 of the Nice Charter remains tied to the fundamental organizational premises of economic activities, with wide discretion being otherwise accorded to decision-making authorities in regulating them.Footnote 121
The point is further confirmed by the Cali Apartments ruling, in which the Court—while avoiding direct engagement with the Nice Charter but relying on the same caselaw cited by the Advocate General—found that the scope of impingements on the freedom to provide services pursuant to Article 9(1) of the Services Directive was both functionally and geographically limited, and further mitigated by the correlative ineffectiveness of a posteriori administrative penalties. In greenlighting the authorization regime, the Court attributed significant weight to the specific objective pursued by the French authorities, namely, to halt “the rapid conversion trend which is creating [the long-term rental housing shortage].”Footnote 122
Renting Affordability as Post-neoliberal Democratization
As anticipated throughout, both the externalization of the housing economy via foreign investment-dependent policies and the horizontal touristification of the housing sector express forms of depoliticization of housing provision which factually shift decision-making away from democratic deliberation and into the hands of external, non-political actors.Footnote 123 This phenomenon has been explored across a range of scholarly avenues, particularly by geographers and political theorists, and more recently in constitutional literature, although limited to its implications for comparative federalism. To this end, one of the central themes in contemporary discussions of post-neoliberalism—far from constituting a unitary conceptual framework—revolves around the enhancement of constitutional and legal capacities to mitigate and correct the propensity of neoliberal economic governance to erode democratic deliberation.Footnote 124 Accordingly, the idea of post-neoliberal housing policy has been proposed to capture newly emerging regulatory paradigms specific to large, economically dynamic urban centers that fundamentally run counter housing commodification, unaffordability and the accompanying authoritarian drift in housing governance.Footnote 125
With this in mind, the discourse on post- or counter-neoliberalism has, since its discursive origins, long emphasized the Polanyan, countermovement-like nature of regulatory responses to neoliberal failures—in both mitigative and corrective senses—as experiments within democratic liberalism and in opposition to protectionist or neoliberal-nationalist responses to economic globalization.Footnote 126 From a constitutional standpoint, the antagonism to the law-and-economics property ethics of commodification aligns with both the foundational tenets of European social constitutionalism, as well as with the inclusionary ideals that are distinctive of democratic liberalism. In the first sense, as Emilios Christodoulidis and Jeff King, among others, have powerfully restated, social checks on the atomizing potential of economic freedoms are inherently antagonistic or reactive. While Christodoulidis, in particular, has underscored how social rights remain fundamentally anomalous to market dynamics and “incongruous to capitalism and its particular structures of opportunity and reward,”Footnote 127 King has defended a social construction of the rule of law as “a state duty to legally regulate forms of non-consensual exploitation,” defining such exploitation as “transactions in which one person takes unfair advantage of another, and that other has no choice but consent.”Footnote 128 This perspective resonates with critiques of the “possessively individualist social ontolog[ies]” characteristic of right-libertarianism,Footnote 129 which are, in part, embedded within neoliberal economic governance in its capacity to enable private domination. In the accounts of both Christodoulidis and King, reactions to mercantilist ethics are regulatory and hence politically reactive, and thus depend on the aggregative potential of their sociopolitical basis.
In a complementary vein, Rosalind Dixon has recently recast attention on the need for standards of constitutional design and interpretation to aim at enhancing responsiveness to market failures and mitigating their negative social externalities.Footnote 130 Interestingly, she does so by reinstating social solidarity as inherent to democratic liberalism, properly understood. While neoliberal rule has—according to Dixon—undoubtedly yielded certain benefits, it has also progressively eroded social guarantees and access to essential goods, labor protections, and social safety nets, leading to both right-wing calls for protectionism and left-wing revivals of market-based socialism. In an age of conceptual mystifications, she accordingly critiques the conflation of liberalism with neoliberalism, reasserting the democratic liberal tradition’s commitment to what she terms “fair market constitutionalism.” This framework envisions democratic liberalism as a “commitment to market-based forms of ordering” that prioritizes regulating and supplementing markets to uphold liberal values such as dignity, equality, and democracy.Footnote 131 Under this conceptualization Dixon underscores the desirability of “weak but more than nominal constitutional property rights,” advocating for a middle ground between the excessively robust property rights characteristic of neoliberal governance and the excessively minimal ones found in democratic socialism.Footnote 132 In sum, any democratic liberal construction of constitutional property should be anchored in its regulatory ideals and role in addressing market failures.
These arguments are particularly fruitful in contexts where property clauses incorporate a social dimension and social rights are constitutionalized. Even under different jurisdictional premises, the progressive construction of property rights as tools for substantive equality shares this antagonism toward a purely economic, neoliberal rationale. In American progressive property theory, for instance, property is conceptualized as enabling “each person to obtain the resources needed for the full social and political participation.”Footnote 133 These theoretical frameworks reject the economistic premises of neoliberal property regimes and instead foreground the social externalities of ownership, alongside the underlying values and principles that should guide regulatory intervention in the property domain.Footnote 134 An application of these theories is found in the Irish constitutional context—arguably among the more acute instances of contemporary housing precarity—where Rachael Walsh has defended a progressive interpretation of the “principles of social justice” and “exigencies of the common good” embedded in Article 43 of the 1937 Constitution. Her analysis reorients the interpretive focus toward social responsiveness and a principled ordering of property values, thereby anchoring a democratic reconciliation between social inclusion and economic governance.Footnote 135 On this view, the reassertion of anti-mercantilist constitutional values functions as a corrective to neoliberal fallacies, reestablishing a socially grounded vision of democratic liberalism.
Complementing these developments, a further strand of critical analysis has emerged within recent law-and-political-economy scholarship, which interrogates the constitutional imaginary of property in its complicity to structures of socio-economic inequality.Footnote 136 These critiques highlight the ways in which legal rationality can operate to insulate “the economy from democratic contestation,”Footnote 137 while simultaneously calling for a reinvigorated normative concern with collective agency and democratic responsiveness.Footnote 138 Much like progressive property theory, law-and-political-economy approaches affirm the democratic ethos at the heart of property ethics, rejecting economic essentialism and opposing the value relativism that too often permeates conventional property hermeneutics.Footnote 139 Within this framework, imaginaries of a “transformative tenancy law” are defined in explicit opposition to the “hegemonic and expansive market rationality that structurally corrupts the social and need-based meaning of a home.”Footnote 140
Constitutional Instabilities
As argued, the recalibration of renting profitability and the regulatory—or “soft”—asymmetrization of housing governance are defining traits of a post- or counter-neoliberal movement within urban homeownership, which finds structuring in evolving European constitutional property politics. This development, however, is far from uniform and remains subject to unavoidable dynamism.
Internally, regulatory responses to housing crises clearly depend on their sociopolitical basis and remain vulnerable to the charges of classical economic liberalism. There exists, in this regard, a direct relationship between the geographical asymmetry of housing challenges to constitutional property and the politics of property use, one that increasingly challenges entrenched constitutional dogmas related to national monopolies over civil law production, and the increasing obsolescence of decentralized public housing competencies. In this sense, the factual recognition that urban centers tend to be more receptive to progressive politics than national contexts may, paradoxically, result in affordability and gentrification problems remaining perpetually dependent on national political will or else condemn cities to persistent delays in policy response, as a form of punitive or adversative unitarism. This dynamic reflects the enduring clash between sovereignty and governance that lies at the heart of housing policy,Footnote 141 a tension that is further exacerbated by resurgent centralist enthusiasms in contemporary ethno-nationalist populism.
Moreover, the rise of post- or counter-neoliberal urban homeownership, as widely noted in the literature, does not reject economic liberalism per se, but rather targets the autocratic and exclusionary distortions produced by neoliberal governance. As the Mietendeckel and Ley de Vivienda cases demonstrate, safeguarding private autonomy and market unity should not preclude greater political nuance, particularly where constitutional standards can be interpreted to accommodate a degree of asymmetrization. A critical limitation, accordingly, lies in the difficulty of aggregating localized experiments that foster greater social embeddedness in property relations into a broader, stable, counter-hegemonic paradigm for housing democratization.Footnote 142 The rise of cities in comparative European federalism—though currently modest—holds potential to rebalance economic and social reasoning and better reflect the shifting geographies of urban homeownership politics. It may also offer a basis for reimagining center-periphery relations, grounded more in collaborative than competitive governance. In the absence of expanded constitutional autonomy at the municipal level—through “hard” asymmetrization—delegating housing governance to the maximum extent constitutionally permissible remains a comparatively viable strategy, though one that is complicated by the practical divide between municipal and national political exigencies.
Conclusion
This Article has examined, through the lenses of comparative public law, constitutional interpretation, and supranational adjudication, the evolving constitutional contours of the housing challenge to neoliberal homeownership in Europe. Focusing on key regulatory developments—from housing agency fees and short-term lettings to rent controls and vacant housing taxation—it has explored how emerging public interests in housing affordability and inclusive urban geographies are reshaping the constitutional politics of property.
Descriptively, the housing challenge reflects a politically dynamic and geographically asymmetrical reaction to the negative social externalities of housing commodification, as entrenched by neoliberal economic governance. It seeks primarily to recalibrate the rising profitability of urban renting in high-demand areas against constitutionally grounded public interest mandates. In this regard, European constitutional property regimes—particularly under texts that recognize a social function of property or a right to housing—offer significant interpretative latitude for such recalibration. Courts across jurisdictions, including Spain, Germany and the ECtHR, have reinstated that the pursuit of maximum profit is not a constitutionally protected entitlement, and rental profitability may be legitimately curtailed in the interest of social cohesion, inclusion, and spatial justice. The same consideration follows from the general regulatory construction of economic initiative rights.
In parallel, this Article has traced the rise of a regulatory or “soft” asymmetrization of housing governance, whereby local governments strive for greater authority to intervene in rental markets. As rental unaffordability and gentrification crises unfold within distinct local geographies, cities have become focal points of housing mobilization and democratic experimentation. Yet, their capacity to act remains constrained by constitutional frameworks that dogmatically privilege centralized control over civil and economic law, often subordinating effectiveness to formal unity and to redundant reiterations of economic liberalism guarantees. The resulting tensions underscore a structural disconnect between the spatial concentration of housing need and the distribution of legal authority. At present, regulatory asymmetrization is limited to functional deviations from geographical equality, whereby interventions—such as rent caps or vacancy taxes—are territorially nuanced to reflect different levels of severity of housing market imbalances.
Together, the recalibration of rental profitability and the regulatory asymmetrization of housing governance can be understood as a countermovement within European constitutionalism—an attempt to re-politicize and democratize housing regulation in opposition to the depoliticizing tendencies of neoliberal economic governance. Rather than rejecting markets altogether, this movement reflects a deeper normative contestation over the terms of market participation and the constitutional ordering of property. In this sense, housing crises reopen space for constitutional narratives that foreground substantive equality, social inclusion, and the public dimension of private ownership as a legal institution capable of serving shared civic goals. Ultimately, this Article suggests that addressing Europe’s housing crises requires both the consolidation of post-neoliberal regulatory experiments and a reimagining of the relationship between cities and national legal orders. As urban centers continue to emerge as the economic, social, and political frontlines of housing struggle, empowering local authorities with greater constitutional and legislative tools will be critical to fostering more inclusive urban geographies and to realizing the democratizing potential of housing as a foundational site of social citizenship.
Acknowledgements
The author wishes to thank the convenors and participants of the Transnational Junior Faculty Forum, held in Berlin on September 18-19, 2024, at Max Planck Law, and the discussants to this paper, Irina Domurath and Klaas Hendrik Heller. Likewise, gratitude goes to Verena Madner, Ben Davy, and Antonia Layard for their comments on an earlier draft of this paper at the “Public Law and the Cities” conference, held in Vienna on September 10-11, 2024.
Competing Interests
The author declares none.
Funding Statement
No specific funding has been declared in relation to this article.
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