The dangers of legislating by Decree: The non-validation of Royal Decree-law 21/2018, of December 14, on urgent measures in housing and rental matters

The current political situation in Spain, where none of the different parties holds the necessary parliamentary majority to be able to govern alone, has meant that the legislative activity in recent months has been articulated fundamentally on the basis of Decree-laws, understood as those provisional legislative provisions that, only in case of extraordinary and urgent need, can be approved by the Government meeting in the Council of Ministers (and not the Parliament) and that require for its validity the subsequent validation and approval by the Congress of Deputies in the maximum term of 30 days.

Within this framework, the Royal Decree-law 21/2018, of December 14, on urgent measures regarding housing and rental, which entered into force on December 19, 2018, is precisely framed.

This Decree had a great social impact by introducing major changes in such important regulations as, among others, the Horizontal Property Law and the Urban Leasing Law. Thus, among other notable developments, the minimum term for housing leases of 3 to 5 or 7 years was increased, depending on the case, extending the tacit extension from 1 to 3 years, or allowing the communities of owners limit or condition the exercise of the holiday rental in the property by the favorable vote of 3/5 parties of the owners that in turn represent 3/5 of the participation fees.

However, the truth is that the life of this Decree has been very brief.

As previously stated, the Decree-laws, as provisional legislative provisions that are, require for their final validity the subsequent validation and approval by the Congress, which, if not already assembled, must be convened for this purpose within 30 days following the promulgation of the Decree.

Therefore, the main problem posed by the Decree-Law is that they are not validated by Congress.

And this is exactly what has happened with Decree-Law 21/2018, which, submitted to a vote in the Congress of Deputies on January 23, 2019, did not reach the majority required to be validated, and must therefore be understood. that, from that moment, the Royal Decree-Law was "repealed".

At this point, the main question that arises is: and what happens with those legal relationships born under the protection of this repealed rule? By what standard should they be governed? For the previous one? By the repealed norm? This question is of special interest with respect to those lease agreements signed during the brief period in which the Decree has remained in force.

Although the positions held are diverse, the truth is that there is substantial agreement in the doctrine when considering that, during the period in which the Decree has been in force, it has displayed full effects and therefore the legal relationships created or the Contracts entered into during said period must be subject to the provisions of this Decree-Law.