Constitutional Court, 18 January 2024: the property ownership condition is constitutional, including for a house in Morocco

Since 1 January 2006, the housing company IJzer en Zee had rented a social housing unit in Adinkerke to a married couple. An investigation by an external partner, the investigation agency Focus Handhaving, showed that on 4 November 2014 the couple had bought a house in Angad (Morocco), each for one half. The housing company terminated the lease by registered letter of 21 February 2022 and claimed repayment of the unduly received social rent reduction. The tenants left the dwelling at the end of May 2022 and the case came before the justice of the peace (vrederechter) of the canton of Veurne.

The tenants did not dispute the claim directly, but asked the justice of the peace to refer a question to the Constitutional Court. They had paid for the house with the inheritance from the wife’s father and a bank loan of 6 December 2012. Their position: anyone who invests such funds in real estate loses their social housing, while anyone who leaves the same money in an account risks nothing. That would be discriminatory.

On 14 February 2023, the justice of the peace asked whether Article 6.21 of the Vlaamse Codex Wonen (Flemish Housing Code), which provides that the tenant must meet the conditions regarding real estate ownership throughout the entire term of the lease, violates Articles 10, 11, 22 and 23 of the Constitution by distinguishing between tenants who invest inherited, borrowed or saved money in real estate and tenants who hold that money as movable assets.

On 18 January 2024, the Court ruled that Article 6.21 does not violate the Constitution. The distinction is based on an objective criterion, the nature of the assets, and is reasonably justified. The decree legislator wishes to reserve the scarce social rental dwellings for those who need them most and wishes to encourage those who have the means to move on to the private market.

The key consideration reads:

After all, real estate ownership in principle makes it possible to realise the right to housing more easily by one’s own means, either by living in the property concerned oneself, or by using the resources arising from the letting, exploitation or sale of the property or the right in rem for a dwelling on the private market.

The Court added that it is for the ordinary courts to examine whether the specific property ownership conditions laid down by the Flemish Government are reasonably connected with the possibility of providing for adequate housing. On the right to private life and the right to adequate housing, the Court reached the same conclusion: no violation.

The property ownership condition is established at the highest level. After the justices of the peace and the court of first instance, the Constitutional Court has now also ruled that a social tenant who owns a dwelling, anywhere in the world, may lose their social housing. The argument that the dwelling was paid for with an inheritance or a loan does not help the tenant. What the rule involves is explained in the property ownership condition in the Flemish Housing Code.

Investigation through an agency is taken for granted in the facts of the ruling. The Court describes without any reservation that the ownership came to light through an investigation by an external partner. This is consistent with the rulings in Hamme, Antwerp and Woonhaven.

Recovery of the reduction is the normal consequence. In addition to the termination, the housing company claimed repayment of the social rent reduction. How such a claim is built up is explained in what the Belgian courts say. Each ruling relates to a specific case file and offers no guarantee for the outcome of another case.

Source: Constitutional Court, ruling no. 8/2024 of 18 January 2024, case number 7937, ECLI:BE:GHCC:2024:ARR.008 (const-court.be). Quotations translated from the Dutch by Bureaubuitenland; not an official translation.