El nuevo texto constitucional no impide el dominio sobre dichas viviendas, por tanto, sí se puede ser propietarios de ellas, ya que ese derecho entrega el mínimo que garantiza el Estado, cual es el goce, siendo el derecho a la propiedad otro derecho garantizado por la nueva Constitución que permite el dominio sobre toda clase de bienes.
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Ha causado gran revuelo en los últimos días el artículo 51 del nuevo texto constitucional, que asegura a toda persona el derecho a una vivienda digna y adecuada. Mucho se ha especulado de si ello significa que las personas serán o no dueñas de esas viviendas, si será el Estado el propietario, o si las viviendas son susceptibles de heredarse. También, se ha indicado que las viviendas sociales en el nuevo texto constitucional jamás serán propiedad de las personas a las que se les entregue. Para entender, entonces, lo que se está garantizando en esta norma se debe conocer el texto propiamente tal.
El artículo 51 de la propuesta constitucional, indica lo siguiente:
Toda persona tiene el derecho a una vivienda digna y adecuada, que permita el libre desarrollo de una vida personal, familiar y comunitaria.2. El Estado tomará las medidas necesarias para asegurar su goce universal y oportuno, contemplando, a lo menos, la habitabilidad, el espacio y equipamiento suficientes, doméstico y comunitario, para la producción y reproducción de la vida, la disponibilidad de servicios, la asequibilidad, la accesibilidad, la ubicación apropiada, la seguridad de la tenencia y la pertinencia cultural de las viviendas, conforme a la ley. 3. El Estado podrá participar en el diseño, la construcción, la rehabilitación, la conservación y la innovación de la vivienda. Considerará particularmente en el diseño de las políticas de vivienda a personas con bajos ingresos económicos o pertenecientes a grupos de especial protección. 4. El Estado garantiza la creación de viviendas de acogida en casos de violencia de género y otras normas de vulneración de derechos, según determine la ley. 5. El Estado garantiza la disponibilidad del suelo necesario para la provisión de vivienda digna y adecuada. Administra un Sistema Integrado de Suelos Públicos con facultades de priorización de uso, de gestión y disposición de terrenos fiscales para fines de interés social, y de adquisición de terrenos privados, conforme a la ley. Asimismo, establecerá mecanismos para impedir la especulación en materia de suelo y vivienda que vaya en desmedro del interés público, de conformidad con la ley.
El primer inciso describe el derecho constitucional que se está reconociendo a todas las personas, esto es el derecho a una vivienda digna y adecuada, es importante mencionar, desde ya, que este derecho no está reconocido en la actual Constitución, por lo que es una propuesta innovadora del actual constituyente reconocer y garantizar este derecho.
¿Pero que se está garantizando con este derecho? ¿Es verdad que las personas nunca serán dueñas de esas viviendas? ¿Si se adquieren pueden ser heredables?
Para entender el derecho a la vivienda digna y adecuada, se debe comprender qué es lo que debe garantizar el Estado en su mínimo, lo cual está contemplado en el inciso segundo: “Estado tomará las medidas para asegurar su goce universal y oportuno, lo que contempla al menos la habitabilidad (…).” En la nota anterior, del derecho de propiedad se explicó en simples palabras que le goce es ese poder que tienen las personas para usar y gozar una cosa, en el caso de una casa, se tiene el goce cuando se habita. Por tanto, el Estado lo que está garantizando, como mínimo, es el derecho a habitar la casa, lo dice expresamente cuando indica que el derecho contempla al menos la habitabilidad. Luego, la norma también señala que el Estado garantizará la seguridad de la tenencia, lo cual es términos prácticos se hace a través de los títulos respectivos que posean el atributo de goce y, entre los títulos que permiten el goce de una casa, encontramos el comodato, el arriendo, y dominio.
Por tanto, el derecho a la vivienda digna, el Estado lo garantizará entregando como mínimo el goce de una casa, a través, por ejemplo, de un contrato de arriendo o comodato, pero ello no quita que también lo entregue a través del dominio, como es hoy en día al otorgar los subsidios habitacionales, que permiten adquirir la propiedad de las viviendas, sistema que seguirá operando.
Para esa labor, la norma también obliga a que el Estado ponga a disponibilidad suelos en cantidad necesaria para su provisión y la disposición de terrenos fiscales para fines de interés social, y de adquisición de terrenos privados, conforme a la ley, estableciendo mecanismos para impedir la especulación en materia de suelo y vivienda que vaya en desmedro del interés público.
En conclusión, en cuanto a la interrogante de si jamás se será dueño de las viviendas que el Estado garantiza o si estas no serán heredables, hay que indicar que el nuevo texto constitucional, no impide el dominio sobre dichas viviendas, por tanto, sí se puede ser propietarios de ellas, ya que ese derecho entrega el mínimo que garantiza el Estado, cual es el goce, siendo el derecho a la propiedad otro derecho garantizado por la nueva Constitución que permite el dominio sobre toda clase de bienes, salvo las excepciones indicadas en la nota anterior y no pudiendo limitarse, si no en la forma que en ella se establece; así, estas viviendas también pueden ser heredables, si se tiene su dominio, ya que la norma tampoco indica que el dominio de dichas viviendas pasarán al Estado, de producirse la muerte del propietario.
272 comentarios en “Derecho a la vivienda digna: ¿jamás seré dueño de ella?”
Señorita, cono usted indica el borrador dice goce y habitabilidad de la casa, pero no el dominio y menos que será propia del ciudadano, para hacer un poco de historia, en los últimos 40 años el estado entregó viviendas sociales con títulos de dominio, con un mínimo de ahorro, osea le regalaba la casa y esta pasa a ser patrimonio de la persona y por ende heredable…
Por otro lado obviamente que esta co sagrado el derecho sobre la propiedad, pero no todos pueden tener acceso a la compra de una casa, ya que con la inflación, la devaluacion del peso, la incertidumbre por la conducción del gobierno actual, que es un chiste, etc, el precio se disparará, así que el sueño de la casa propia para el común de la gente se convierte en una pesadilla…
En fin por los dichos del presidente referido a los xambioz de paradigmas de la casa propia y la casa digna y lo estipulado en el borrador el estado construirá casas para entregar en arriendo o comodato a las personas..NO CON TITULO DE PROPIEDAD… Saludos…
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