By José M. Pallí, esq.
For many years, Cuba’s National Housing Institute (Instituto Nacional de la Vivienda – INV) has been at the forefront of the island’s quest to ‘rationalize’ and give some agility to the processes that, under often-Kafkaesque laws, Cubans must follow to strengthen and prove their rights over a housing unit.
I use the word ‘rationalize’ with the greatest care, since I am aware that many in Cuba view the U.S. recipe for dealing with the housing needs of those less powerful and wealthy in our communities as very irrational.
I use it with the same care and for the same reasons I avoid using “property rights” when I refer to any Cuban’s rights over their home, preferring the use of “housing rights” to describe the legal relationship between a Cuban and their place of abode.
Cuba’s INV and the two housing laws (Ley General de la Vivienda) that have historically been used to manage Cuba’s housing stock during the Revolutionary period — often under the direction of some of the brightest legal minds Cuba has had during that same period of its history — seem to be heading in the direction of Cuba’s military icons: they may never die, but they are “just fading away”.
This fading act may hint at good news — the kind of news that may, finally, allow me to see a Cuban’s right over their housing unit as an outright “property right”, even if not exactly the same as what we call a “private property right” in our part of the world. I am aware the series of innovative measures taken by the Cuban government over the past few years, many of them after open consultation with the Cuban people, are not aimed at abandoning the socialist socio-economic model, so I am not expecting that to happen, as so many delusional “experts” in Miami are. But it is my belief that the more characteristics Cuba’s “real property rights” share with ours, the more benefit Cuba’s real property “owners” will be able to extract from their real estate asset (and thus far it is one single asset we are talking about: Cubans still can only have/“own” one single house, the one they live in, besides a recreational or vacation home, which no Cuban I personally know has).
Cuba’s constitution does not recognize Cubans a right to a dignified housing unit, but it does emphasize the role the state plays in pursuing that goal. Houses, however, are not to be used for lucrative purposes under Cuba’s laws.
The principle under which “a house is meant to live in, not to live off” is still pretty much the rule of law in Cuba, but it has been eroded in recent years by measures such as the authorization to rent spare rooms in homes to foreign tourists. Another recent tinkering with Cuba’s laws — with, potentially, an eroding effect on Cuban homeowners’ inability to use their houses as a source of income or funds — is found in Decreto Ley 289/2011, which authorized Cubans to mortgage their houses to guarantee a loan from an authorized Cuban bank in order to buy the construction material or pay a construction crew when they want to build a house or rehabilitate the one they live in. The significance of these two “changes” is highlighted by the fact one of the first measures taken by the Cuban Revolution in this field was to ban mortgages and housing rentals. This was achieved 54 years ago by way of the Urban Reform Law (Ley de Reforma Urbana), a law that was given constitutional rank (it was made part of the constitutional framework or Ley Fundamental) by the Cuban revolutionaries.
Now comes Decreto Ley 322/2014, effective January 2015, which sets aside (“extinguishes” reads the new law) the National Housing Institute and assigns most of its functions to the Construction Ministry (MICONS) and to the Physical Planning Institute (Instituto de Planificaciòn Fìsica, or IPF), without significantly changing the Housing Law or housing policy, which now are to be applied and overseen by the MICONS.
At first glance, one of the ideas behind these changes appears to be to facilitate and expedite, if not encourage, the individual initiative of Cubans with the resources to build, remodel or enlarge their own houses. The administrative law rules for this type of endeavors are now to be simplified and the processes — for obtaining building licenses, occupation licenses and other administrative authorizations, as well as cadastral valuations for tax purposes, the assignment of state-owned land to those who want to built a house on it and the certification of land boundaries and the resolution of boundary disputes — will be directed by the baton of the IPF.
Provincial and Municipal Housing Offices (Direcciones Provinciales y Municipales de la Vivienda) are preserved, subordinated to the local organs of the Popular Power (organos locales del Poder Popular), but now run by the construction ministry, which will have two new dependencies: a Dirección General de la Vivienda and the Dirección de Asuntos Legales de la Vivienda.
This is just the latest skirmish against the excessive “administrativización” of the law and the legal processes in Cuba. Will the desired flexibility be obtained? We will know with time. But there are hints of an opening to more economically oriented and rational approaches; asked recently whether, under the new rules, a Cuban homeowner will be able to rent his house when he is abroad, the legal director of the still functioning INV answered with an unqualified “yes”.
José Manuel Pallí is president of Miami-based World Wide Title. He can be reached a jpalli@wwti.net.
