Portugal’s housing crisis has brought one of the most delicate constitutional issues of our time to the forefront of legal debate: to what extent may the State restrict the right to private property in order to ensure access to housing?

The answer requires a careful balancing of two fundamental rights enshrined in the Constitution of the Portuguese Republic (CPR): the right to private property and the right to housing.

The right to property is established in Article 62 of the CPR, which guarantees everyone the right to private property and its transfer during life or upon death. The Constitution nevertheless allows for requisition and expropriation for public purposes, provided that such measures are prescribed by law and accompanied by the payment of fair compensation. Despite its significance as a fundamental right, private property is not absolute in nature and may be subject to restrictions whenever necessary to pursue constitutionally protected public interests or to safeguard other fundamental rights.

In a complementary manner, Article 65 of the CPR recognises the right of everyone to adequate housing, under conditions of hygiene and comfort that preserve personal privacy and family life. This provision requires the State to adopt public policies aimed at ensuring access to housing, including the promotion of affordable and social housing, the encouragement of private construction aligned with the general interest, and the creation of mechanisms capable of ensuring the existence of an accessible rental market.

The constitutional recognition of these two rights highlights the need to reconcile the protection of private property with the fulfilment of housing’s social function. This tension has become particularly evident in recent years as a result of several factors, including the widespread increase in housing prices, limited supply, the concentration of demand in major urban centres, and the impact of tourism and international real estate investment.

Against this backdrop, the legislature has sought to address the crisis through a range of measures aimed at intervening in the housing market. Among the most widely debated was the “Mais Habitação” programme (“More Housing”), which included mechanisms to encourage affordable renting, amendments to the local accommodation regime, tax incentives designed to promote the placement of properties on the rental market, and measures targeting vacant properties. Some of these solutions generated significant legal and political debate, particularly those providing for forms of compulsory use of unoccupied properties, as they raised concerns regarding the constitutional protection of private property, the proportionality of public intervention, and the protection of property owners’ legitimate expectations.

At the same time, other approaches have been advocated to tackle the housing crisis without imposing particularly severe restrictions on property rights. These include expanding the public housing stock, simplifying urban planning and licensing procedures, reducing administrative barriers to the construction of new housing, and strengthening tax incentives for long-term rental agreements. Such measures primarily seek to address the supply side of the housing market, thereby contributing to a more sustainable market balance.

From a constitutional perspective, the validity of the measures adopted largely depends on compliance with the principle of proportionality, which serves as a fundamental criterion guiding the actions of public authorities. This principle requires that any restriction on property rights be suitable for achieving its intended purpose, necessary in the absence of less restrictive alternatives, and proportionate in the strict sense, ensuring a fair balance between the benefits of the measure and the burdens imposed on individuals.

Accordingly, while the housing crisis may justify certain limitations on the exercise of property rights, such restrictions cannot undermine the essential content of those rights or disregard the constitutional guarantees that protect them. State intervention must be guided by principles of necessity, proportionality, and legal certainty, thereby preserving citizens’ trust in public institutions and in the legal system.

Ultimately, the constitutional challenge does not lie in granting absolute precedence to one right over the other, but rather in developing balanced legal solutions capable of reconciling the protection of private property with the effective realisation of the right to housing. In a society increasingly marked by difficulties in accessing adequate housing, the pursuit of this balance will continue to be one of the central issues in both legal debate and public policy in Portugal.