This is a (hopefully) straightforward guide to the several ways that are legally available to owners to rent out their properties.

IF YOUR PROPERTY IS RESIDENTIAL:

  • you can let it out long term under urban letting legislation wherever it is, with a long-term residential contract – see HERE for the definition of long-term residential contracts, which are a minimum of one year;
  • or you can let it out short term as an arrendamiento de temporada (a contract of between one day and one year for a specific purpose other than tourism/holiday) under urban letting legislation – these are technically not “residential” contracts, and require a home address to be given where the tenant normally lives – an address, therefore, other than that of the property being rented.
  • or you can let it for holidays under the vivienda vacacional decree, a new category in tourism law added to the main tourism legislation. This decree is currently being redrafted, and will probably become less restrictive because the redraft was forced by objections from the Monopolies Commission (see HERE). For the moment, its current form requires properties to be residential, not touristic, and to be in non-touristic areas as defined by ayuntamiento planning regulations. Any properties covered by this decree must also not be prohibited from letting for holidays under the terms of community statutes if they are on a complex – and most residential community statutes do in fact prohibit holiday letting.
    • If all these conditions are met, owners must apply for a Certificado de Viabilidad from the Cabildo and upon receipt, then to the Canarian Government for the VV licence itself. The application must include a declaración de responsable before starting to let, a formal declaration that the terms of the decree are being complied with. The full requirements are detailed HERE. In addition, owners have to register for IGIC and submit quarterly IGIC returns, as explained HERE.
    • Infractions of VV regulation are defined as “very serious” and so subject to fines for owners and any of their agents of between €30,000 and €300,000. The Canarian Government is currently redrafting this decree, supposedly to meet the Monopolies Commision’s objections, but how long this will take, or what its final form will be, are unknown. While it is being redrafted, inspections and fines of properties with VV licences are on hold, though the Decree itself remains in force. (NB: all other tourism inspections and fines are still being carried out and imposed).

IF YOUR PROPERTY IS TOURISTIC:

  • Owners of touristic properties on complexes cannot let out privately for holiday lets because tourism legislation requires an officially registered on-site sole agent to manage all bookings and rentals. Owners of independent touristic properties, i.e. not on a complex, need to check their municipal and insular requirements: the regional Government requirements are very restrictive. Most touristic properties, however, are apartments on complexes, and these can be let out short-term in one of two ways:
  1. either for holidays through an on-site sole agent,
  2. or privately with a temporada contract of between 3 months and a year.

Although temporada contracts come under urban letting legislation and are for rentals of between one day and one year for a specific purpose other than tourism/holiday (and with a normal home address quoted for the tenant because the let is not a “residential” one), Turismo deems any lets under 3 months to be touristic. A one day to three month temporada, therefore, is not possible for owners of touristic properties. Fines for owners and any of their agents range from €1,500 to €30,000 – they are typically around €18,000.

The above is the legal situation concerning the rental of whole properties, but if you just want to rent out a room or rooms you can do so under the Codigo Civil, the basic law code. Tourism legislation means, however, that you can’t let out a room on a B&B basis nor as a holiday let, and any lets for under three months risk being deemed holiday lets by Turismo.

 

 

 

This article has 24 Comments

  1. Hi Janet,

    Could you possibly go into a little more detail regarding the on-site sole agent in a touristic complex?

    If, in a complex of 80 apartments, only eg 10 wish to rent them out via an on-site agency, but 51%+ of owners agree to allow it (but not rent themselves – just leave their holiday homes empty) is that still valid, or do 51%+ of the apartments actually have to be rented out via the agency?

    Would it be possibly for the President to apply for the touristic licence and act as the agency? If so, does the 51%+ rule still apply? In this scenario I assume all apartments would have to be rented out by the President under his / her name and not by the individual owners themselves?

    I understand that in a residential complex short-term contracts (3-6 months) cannot be used for holiday-makers. Is this law very strict if the person renting clearly has a primary address elsewhere, or would they have to prove they’re not just on holiday?

    I have been told complexes can be defined as a mixture of residential & touristic – have you heard of this, and could you please explain how that would work re renting short & long term?

    Many thanks!

  2. Your questions in order:

    * According to the law owners of touristic property must make it available for tourism purposes, so they don’t have a choice really to “allow” it.
    * Anyone can apply to be the sole agent, and the criterion is 51% support for the agency to operate – regardless of who is the agent. Any and all apartments rented out must be through the sole agent. The touristic licence would almost certainly already be in place because it is designation of the building licence itself (touristic licences are more expensive than ones to build residential complexes, hence so many “residential” complexes). Residential complexes where owners wish to become touristic may apply for a touristic licence, the detail is in the Alterations section of the Living on a Complex page HERE.
    * Yes the law is strict: this is why so many fines of €18,000 have been handed out. Fines are issued if the inspectors investigate and are satisfied that tourism letting is taking place. The owner will have the right to appeal and will have to argue in Court, with the Court deciding between the inspectors’ and owner’s arguments. The holidaymakers/tenants have to prove nothing. Short-term contracts, however, are not 3-6 months: they are 1 day to 1 year, as explained above. It is unlikely that the inspectors would deem holiday letting to be taking place if there were a tenant with a correct temporada contract, clearly occupying the property on the basis of several months.
    * I do not know the detail on “mixed” residential and touristic – that is a question for a professional administrator.

    Please also see the Q&A on Illegal Letting page HERE where most of these type of questions have already been answered.

  3. Dear Janet,
    Thank you for your efforts to help us to understand important rules. My question is connected with apartment in touristic beachfront hotel in Tenerife. As owner I want to use it for family and friends 6-7 month per year. If I want to give it to let out to our hotel they agree to give for our family only 1-2 month per year in time when they want. The fee what they offer is about 3 times less then market price.
    Is it legal to let it out with other legal agent located next to our hotel ? If not what is your recomendations for us?

  4. No, you have to let out through the sole agent, not the agent next door. What you want is not relevant, I’m afraid. You have to let out through the registered agent, and you are obliged to abide by his terms.

  5. Hi Janet,

    Just trying to find the legality scenario of the following. Apartments block have touristic licence and sole on site agent on site although I think it is part residential part touristic as in many owners do not chose to rent their apartments out and either live in them permanently or leave them empty most of the year!

    The sole agent advertises everyone’s apartments that want to do holiday lets on a not very good web site and people interested respond via the web site directly to the sole agent..

    What would be the legal situation if
    1) I register the apartment with the tourist board via the sole agent

    2) I advertise the apartment on my own web site (I can present it and “sell it” far better than the sole agents efforts!)

    3) I take the booking direct myself but at the same time advise the sole agent of the booking..I renumerate the sole agent at an agreed reduced rate subject to their agreement for administering the booking

    Any thoughts??

    Many thanks

    Bryan

  6. There are many complexes where not everyone registers with the sole agent to rent out (though under the most recent legislation this is increasingly under pressure, with owners actually required to do so). With regard to your question, however, it is the correct system for the apartment to be registered just with the sole agent and for that agent to advertise and take bookings. I’ve answered the various permutations on the Q&A Illegal Letting page HERE … just scroll down to the first question in the Sole Agent section.

  7. Hi Janet.
    On reading this page with interest.
    I was wondering what is the situation if the ‘allocated sole agent’ refuses to engage with an owner to rent out their accommodation to tourist under the auspices of their licence?
    As per Dace’s comment above, even if they do agree, the terms and conditions imposed may be so punitive it is not worth doing as there is no benefit to the owner. Which is basicly the same as the sole agent refusing to entertain them renting to tourists at all.
    Do you know of any reasonable, equitable contracts or working practice documentation in use that both parties should consider adopting in good faith?
    Does refusal mean that if the owner does rent to tourists themselves anyway, there are mitigating circumstances if fined due to intransigence from the body who has the sole agency?
    Or is it (sadly as I suspect) simply ‘my bat my ball’ philosophy, 100% in favour of the sole agent and non negotiable?

  8. Please have a look at the Illegal Letting Q&A page HERE – there is a section on Sole Agents there. The law requires owners to use a sole agent, but agents do not have to take on a property at all – indeed, the law merely requires sole agents to operate within the law, and if they do that, they can conduct agency business as they wish.

    As to owenrs renting to tourists themselves anyway, they are breaking the law if they do so and fines are around 18,000€ of so. There are no mitigating circumstances for breaking this law. You might see this as 100% in favour of the sole agent, but the law sees it as 100% in favour of tourism … and the power is with the law, which imposes a sole agent system with which owners must comply.

  9. Hi Janet, thanks for this helpful site. I wondered if you could help me figure out something about my situation. I have lived for a number of years in a property that is owned by and also occupied by the landlords. We don’t have a written contract, and they asked me and other tenants to avoid registering as living there (e.g. with the council for voting purposes). I am not sure if that is linked to them avoiding tax, e.g. the fact that the number of us that they were renting to (up to 5 at a time, when they are away for months on end), or to do with the fact that some of the tenants are working, not students. I am not sure if they have an HMO or not, and why they would want to ‘hide’ that we are paying tenants if not. At first I thought nothing of our arrangement, but on reflection, they are probably getting away with allowing a number of people to stay on their property without having to declare those earnings, right? I don’t want to get anyone into undue trouble, but I was just curious what might actually be going on with these people…

  10. The request not to register with the ayuntamiento could be linked to non-declaration for tax purposes, but there might be other reasons. I can’t begin to guess what those might be. The issue with non-declaration is not so much with a council’s padron, however, as a declaration on the tenant’s own tax return. There are sometimes issues – I came across one only this week, for example, where an owner/landlord is not declaring rental income but the tenants are unaware there’s an issue, and so are truthfully submitting tax returns: a fine of several thousand Euros was imposed on the owner for tax evasion.

    Sometimes, most often, in fact, owners and tenants are both fully aware of the score, and neither submits the information on a tax return – indeed, such tenants often don’t submit tax returns at all, so have their own “legality” issues going on.

    Basically, however, as long as there is an agreement in place, ideally with a legally-enforcable contract which protects both owner and tenants, then no problems need arise. Where there is no contract, neither side is legally protected – and tax issues are probably the least of the concerns, since tenants can be (relatively easily these days) evicted by the courts and could possibly incur a criminal record, and owners are at risk of financial loss and possible criminal damage to their properties.

  11. Q1)I have been thinking of purchasing a property on Costa Adeje. The Estate agent (next door) says they can help with rental so I have read with interest the information about Sole Agents and legally renting.
    How do I find out if they are the Sole Agent prior to purchasing?
    Q2)Cleaners for the apartments definitely work from their offices and they have quoted a weekly rental of £500 less their fee of £150.
    Is local tax paid at the rate of 19% of the £350 or on the full £500

  12. They should be able to show you their complaints book and registration documents confirming they are the sole agent. You say they are “next door” – check carefully, because sole agents should be “on site”. The legal sole agent can run whatever system they like, but as to tax, I’m afraid you’ll need to ask advice from a gestor or asesor because it’s not something I can advise on.

  13. Another question as I am getting confused … can I clarify… is there a tax implication on weeks that are not rented where I use the accommodation for myself and family?

  14. As I just said, as to tax, I’m afraid you’ll need to ask advice from a gestor or asesor because it’s not something I can advise on.

  15. Michele, they do not sound like the Sole Agent, as they would normally make the tax payment (and IGIC at 7% – local equivalent of VAT) on your behalf and pay you the balance with an invoice showing tax paid (retención) . If paying the tax yourself, it is on the net amount you receive after deducting various expenses. As Janet advises, you should talk to a local Gestor who will submit your returns as various calculations have to be made for the weeks the apartment is occupied by yourself or vacant.

  16. I wonder Michele if the estate agent next door is actually renting out properties illegally in a “residential” complex. There is an estate agent in Costa Adeje who rents out and manages apartments in a residential complex. They offer the service to people they have sold the apartments to I believe.

  17. Hi Janet. A very informative website! But could I ask a question, we’ve owned an apartment in Tenerife for over 9 years now and have had a long term tenant for 9 years of that time. Since the death of my Father recently I have now come into some extra money and would like to take the apartment back for private, family and friends use. How much notice would I have to give my tenant to vacate the apartment in this circumstance? And what legal rights or requirements would we have to follow to legally do that? I do intend to renew the latest Contrato De Arrendamiento De Vivienda Amueblada Por Tempotada due to be signed on the 15th December 2016 for a further 6 months so was looking for the tenant to vacate the property in June, is that feasible. Many thanks.

  18. Well, as I say HERE:

    once the property has been let for a full year and the contract has been renewed, the owner of the property will be able from that point to recover it for use as a main home with notice of two months.

    As I also say on that page, however:

    short term contracts (contrato de arrendamiento por temporada) are common, running normally for three or six months. Note, though, that these contracts are expressly for a specific purpose, e.g. temporary work placement, study, etc., and not for habitual residence – nor holidays: indeed, the tenant’s primary and habitual residence must be detailed on the contract. … the Courts can change a short term contract to a long term one if the tenant requests it and can show that the property has become his or her habitual home. This is to protect tenants from landlords who give repeated short-term contracts in an attempt to avoid passing on the legal protections that long-term contracts bestow.

    Do bear in mind that the Courts view “use as a main home” as different to wanting it for “private, family and friends use”. The law gives you the right to evict the tenant with two months notice provided that you’re going to live in it, and legally that must be for at least three months. Otherwise, and particularly since it’s the same tenant throughout this nine-year period, the Courts will be sympathetic to any argument they might bring that this is a family home in which they have the right to remain for the duration of a Court-imposed residential contract, which is what they should have had by legal right instead of the temporadas.

  19. If it is let out according to the definitions above, yes. Presumably it does not have a touristic designation, so provided your property is in a residential area, you can apply for a Vivienda Vacacional licence to do holiday lets.

  20. Janet please can you clarify our position. We have been told that Palm Mar has been redesignated from residential to a touristic area, and that has been a decision by Arona Council.
    Some people have taken this as a green light to rent out their property to holiday makers…..I fact it is my understanding that some property is now changing hands on that basis. We now find we have changing neighbours on a weekly basis. It’s not what we bought, and not what we want. How can someone simply rent out their apartment when there is no checks on equipment and safety, no reception to hand out keys and sort problems, and no one to refer to when these people ignore security or complex rules because they are ‘on holiday’ .
    Many years ago complexes were given the opportunity to vote on this issue….we have simply had this decision thrust upon us. Is there anything we can do, apart from sell up?

  21. It’s news to me that Palm Mar has been redesignated. It remains illegal to rent out residential apartments for holidays, and I know of no touristic ones in Palm Mar. Having said that, Palm Mar is a residential area, and so properties there can register under the Vivienda Vacacional scheme (as long as their community statutes do not prohibit it) to let to tourists. As always, when given a claim that seems outrageous or incredible, demand proof, and do not accept anyone’s word that something has happened.

  22. Please can you clarify we are hoping to buy into a block of 27 apartments in Playa San Juan we would like to do short holiday let’s but the rules of the community states only 3 month lets are allowed under the new law will we be able to do short let’s

  23. No you can’t I’m afraid. As it says in the main post above, you can do short-term contracts of up to a year but these may not be for holidaymakers/tourism purposes. And you won’t be able to register under the vivienda vacacional scheme to do holiday lets because your community rules don’t allow them.

    Note that there’s no “new law”. The old tourism law remains in place. The only new thing is the Vivienda Vacacional DECREE, a separate thing. This doesn’t apply to you because, as I say, there are three requirements to fulfill before you can register … 1) the property must be residential, 2) it must be in a residential area, and 3) community rules must not forbid holiday letting.

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