The Superior Court of Justice of the European Union (TJUE) has endorsed the legality that the member states set by law to the commissions charged by real estate agencies for sales management or housing rentals. Moreover, community justice has justified the ruling by arguing that the limitation of commissions that, logically, in many cases end up impacting the prices of acquisition and leasing, “It seems suitable to promote accessibility to adequate housing at affordable prices,” It reads in the text. The sentence acquires special relevance in Spain, whose real estate market is going through a pressing supply crisis. Today, the General Council of Notaries has announced that in 2024 prices climbed up to the 1,753 euros per square metera 6.9% increase in just one year.
The TJUE ruling comes in response to a preliminary ruling by the constitutional court on account of a law that in that country limits the commission that can be applied by acquisitions and sales to the 4% of the contractual price. In the case of rentals, the limit is set at 4% of the amount resulting from multiplying the amount of monthly income for the number of months during which the property is rented.
The European Court has endorsed the measure – the text of the sentence continues – because it is not discriminatory, since it is applied regardless of the registered office of the interested real estate company. In turn, he considers it “justified” because “It facilitates accessibility to housing at affordable prices”, It is read in the ruling, which puts special emphasis on the potential benefit to vulnerable groups such as young people, students and elderly. In turn, the TJUE has considered that Slovenian law can contribute to consumer protection, offering greater prices transparency and preventing excessive rates from being applied.
From there, and the nuance is important, European Justice has left the verification of whether the limitation imposed was “necessary” in the hands of the Constitutional Court in the sense that “it cannot be replaced by other less restrictive measures that allow obtaining the same result.” As duties, the TJUE has commissioned the Slovenian Constitutional to examine whether the legislator of that country could have established a measure specifically aimed at vulnerable consumers “and if the remuneration for real estate intermediation services allows societies that provide them to cover their expenses and obtain a reasonable benefit,” concludes the text.
The consumption sanctions for the collection of ‘extras’
The case affects Spain, like everything that the TJUE decides, at least because it limits the ability to establish limits to commissions in the future, because for the moment they are not contemplated in our legislation.
The last modification brought by the Housing Law, approved in 2022, maintains the free will of real estate to establish commissions in sale operations. The modification of draft introduced that year arrived by the rents flank, by establishing that these commissions could only be paid by the lessor and never by the lessee. In fact, at this time the Ministry of Consumption is investigating several companies in the sector that according to the ministry directed by Pablo Bustinduy – of the Government’s part of the Government – would have forced the tenants to pay those extras, among other practices supposedly contrary to the law.
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