In Tenerife

Update on illegal letting situation

Update 25 March: As I posted on 14 March below, there are three recent judgments from the Canarian High Court where fines were overturned on the grounds of a successful appeal based on the EU’s Bolkestein Directive. I apologise for the delay in coming back to this to get the information out but felt that it was too important to post something that was possibly incorrect: as I said then, it was too early to give firm legal opinion until the judgments were considered in detail.

I now have the judgments and legal opinion in my possession, and can confirm that they have nothing whatsoever to do with the inspections made and fines imposed on individual property owners for commercial letting. The judgments relate entirely to SL companies operating without the legal requirement of “Autorización Previa”. The Bolkestein Directive means that it is no longer compulsory for businesses to get an administrative license before starting a holiday let business. Even more specifically, if there is no infraction or violation of the law, they cannot be fined, but if there is an infraction, with a commercial let that is otherwise illegal, they can be fined on the basis of that particular illegality.

To be explicit: the Bolkestein Directives are concerned only with registered holiday companies, and then only with the issue of prior authorization to trade. The judgments have no relevance whatsoever to any illegal activities such businesses might be undertaking, and if found to be doing so, they can be fined for those activities. The judgments have absolutely no relevance to individual owners in any shape or form, for whom it can be considered as though the judgments did not exist.

Original post 14 March: I started this post a week ago, and I apologise for the unavoidable delay in publishing it but I needed to get legal confirmation before giving information of this importance.

The Supreme Court in Madrid, the highest Court in Spain, has issued a judgment on a separate issue which we have confirmed has legal application to the appeals currently underway against fines for illegal letting. The judgment, issued in December, concerned internet piracy, and a prosecution undertaken by the Technological Investigation Brigade (BIT) – the police unit behind the internet bullying warning that I posted HERE. In their prosecution of “internet pirates”, the BIT had confirmed IP addresses and linked them to proven phone line ownership: their prosecution was of individuals identified by both IP and phone ownership.

The Supreme Court has now judged that to destroy the presumption of innocence, which is a fundamental constitutional right, more is needed than this form of identification, which is unsafe and illegal. This judgment is of considerable significance to the illegal letting situation since Turismo’s inspectors have not even gone so far as such identification. They have merely taken adverts from the internet and not gone beyond that. They have certainly not even taken the next step of trying to identify who might have placed those adverts, let alone confirm identities through IP address and phone line ownership. As such, the Supreme Court judgment is of strong legal relevance to the defences now in appeal, and an adjunct to the already-submitted appeal has now been presented for José Escobedo’s clients to the Courts, adding the precedent to the arguments used in the appeals. Anyone currently appealing should check with their lawyer that this is being done in their case.

In the meantime, we can now confirm the arrival in Tenerife of a change of tactic by the inspectors previously seen over recent weeks in the eastern islands. We cannot be sure that this is because the Government knows of the above Supreme Court judgment, but it seems quite possible. Inspectors are visiting complexes in the guise of “tourism standard quality surveyors”, and are presenting themselves as such even to Presidents of communities to gain introductions to apartments, though door-to-door visiting is also being reported. These apparent “public officers” are asking the occupants of the apartments how long they are staying, how much their holiday cost, and whether they are happy with the tourist services included with their booking. They have a “questionnaire” for people to fill out. Evidently, owners in residence will not have a problem, but they need to inform any guests that they might be visited. Legal advice is that guests should acknowledge that they are not the owners, but insist that they are not authorized by the owners to answer any questions, nor to fill in any forms, nor especially to sign anything. If pressured, they should ask for the questionnaire to be left with them to be filled in at leisure and returned by post.

Finally, there are two further points that I’ve been asked to clarify. The first concerns three judgments issued by the Canarian High Court recently where fines have been overturned on the grounds of a successful appeal based on the EU’s Bolkestein Directive. It is too early to give firm legal opinion until these judgments have been considered in detail, and this is being done at the moment, but for now we can say that the rulings appear to be relevant to agents rather than individual owners. I stress that this is a provisional interpretation and I’ll confirm further at a later date, but I would emphasise that it appears not to be of relevance to individuals, and that it in any case only refers to tourist-licensed apartments. It has absolutely no legal relevance to residential apartments which may not be let under any circumstances under legislation that is not in breach of the Bolkestein Directive. The second point is that there appears to be misinterpretation of a proposed clause in the new law currently in Parliament about a two-year period of grace: again, this refers only to tourist apartments, not residential, and specifically to a period of grace for tourist apartments to be brought up to the minimum standard which the new law will also define. The new law, as proposed, does not envisage a two-year period of grace during which illegal letting may be carried on with impunity.

Once again I apologise for the delay in publishing this post, but it was essential that it was legally clarified and confirmed before it appeared. I had that legal clarification and confirmation only last evening.

 

150 Responses to Update on illegal letting situation

  • Finally the wait is over. This does sound like slightly better news.

  • Interesting post. We all know if a residential complex is a true residential complex…but is an Ex-Touristic complex i.e. a Touristic complex which has lost its licence deemed to be a Touristic complex where the proposed 2 years grace will be put in place? Obviously a licensed Touristic complex is licensed and owners can continue to let short term with no problems, but when you talk about the possible 2 year period of grace…are they only talking about Ex-Touristic complexes. I guess we’ll have to wait and see, but I wouldn’t want to be on the receiving end of a fine for not knowing.

  • We’ll only know the detail when the final form of the law is published, I’m afraid.

  • Simon states ‘Obviously a licensed Touristic complex is licensed and owners can continue to let short term with no problems’
    I’m not sure it is that clear?
    and do you need to go through the sole agent? And what if there is no sole agent on a touristic complex but the management are vague and woolly on everything (as my complex)?

  • I’m not sure what you mean by “the management” if there’s no sole agent. Presuming you mean the President and/or administrator, then it really isn’t relevant whether they’re woolly or not: any individual owner can denounce another to Turismo, which is where the issue will be decided.
    .
    In terms of a complex with a tourist licence, yes, it is clear that owners will always have to operate through a sole agent. They do at present, and the new law doesn’t project any change in that respect. Apart from that, we’ll have to see how the new law deals with tourist complexes with lapsed licences.

  • The bolkestein directive seems to be quite unspecific. My reading is that whatever business is allowed in one member country should allow that same company (or individual) to operate in another member country not only without hinderence of bureaucracy, but governments should set up “one stop shops” to help. Does that mean then that because you have the ability to run a holiday home in the uk, you can also be allowed to run it here. The implications here are immense, also the implication is that what turismo is doing is therefore “illegal”

  • I don’t know, and have been expressly asked to avoid speculation on this while the lawyers investigate the ruling in detail. I repeat, though, that legal opinion is that it is not likely to be applicable to individuals, but rather to agents.

  • It says that they have taken the adverts from the internet but not checked that the details of the person placing the ad have not been verified – in most instances they wouldn’t need to as the person’s contact details – Name, Phone Number and E-Mail address are usually on the website so you can contact them to make a booking.

    It is also possible to check backwards in time on the web to check adverts and compare the contact details on the various websites for previous years – I’ve done it going back 4 years for some research I did for a friend.

  • Hi Bob, yes if there’s a trail like that it’s going to be strong evidence towards the person responsible for the internet/phone being the person who placed the ad. I understand that under the new Supreme Court ruling, however, that would still be capable of challenge.

  • If I was a lawyer I’d challenge the claim that i’d placed the advert for sure. After all some of these holiday rental websites don’t remove your detaisl even when you’ve expressly toldthem you don’t want to advertise – my name appears on one such site and I’ve never paid them to put it there – it’s kept active for SEO purposes.

    I think Janet deserves a round of applause for the timing of this latest article as it shows the sober reality of the latest “Bolkenstein twist” in this saga rather than giving owners inaccurate speculation as seen the press this week.

  • Yes just because its on a web site doesnt mean the owner put it on so not evidence off illegal letting as we know a number off apartments are on a certain web site without the owners knowledge.

  • Are there many people who are genuinely not letting but adverts exist, placed by someone else, that have instigated fines?

  • Hi Janet, I must say that I am a little surprised at the information and advice you give in your article. It seems that you are condoning illegal letting by supplying information on how the Government Inspectors obtain their evidence. It also seems that you are advising these same people to tell their tourists in their illegally let apartments to be uncooperative to avoid prosecution or am I reading it wrong?

  • I am advising people first and foremost and above all to stop advertising. As an Alotca committee member, however, my second priority is helping people avoid outrageous and unjustifably high fines. As to the advice for “people to tell their tourists in their illegally let apartments to be uncooperative to avoid prosecution” … yes, you’re reading it totally wrong. The inspectors are misrepresenting themselves, and people are being advised to avoid incriminating themselves or the owners when being tricked into giving information that is not legally required – this is different to non-cooperation, though you might think the difference is subtle. What is less subtle, however, is that this is different to “condoning it”.
    .
    I don’t condone it, but I do recognise that there are many owners out there who effectively had money thrown at them to buy properties for the letting of which, they were repeatedly advised, they would experience no problems even though illegal, because the Government was ignoring its own law, and had done so for 15 years. These people, many of them, have mortgages which are funded by holiday letting. The alternative is repossession, and the continuation of a debt that Spanish mortgage legislation permits even after the property has been repossessed. I wouldn’t wish that on my worst enemy, and as for residential complexes, what happens when there are so many empty repossessed apartments?
    .
    In any case, the advice on how to deal with the inspectors posing as quality surveyors is that of José Escobedo, not me, though I have to say that I second it fully.

  • These owners have the option to sell, while I realsie it’s not a sellers market they can explore that option rather than risk fines

  • Well said Janet some of us need all the help we can get, our President and Developer misled us for 3 AGMs from 2009 to 2011 not untill after we had been fined did they confirm that we did not have a Touristic Licence.

    Peter Berry you sound very bitter and twisted, try being in my position I have been fined €13800.00 which I have had to lodge in a Spanish Bank it has cost me almost €2000.00 to employ a lawyer I am no longer allowed to rent my apartment when I am not there,
    and before you ask I did not buy my property with a nod or a wink nor was it done on the back of a fag packet, I employed a Spanish lawyer unfortunately no longer is in Tenerife.

    Hows that for feeling (Pd) off

  • Sorry Janet,

    While I was One finger typing my last comment John Parkes posted what planet are some of these people on we have been trying to sell our property in fact we have reduced it £60,000.00 and to be honest although we love Tenerife at our age 66 & 64 we just want to get out of the CAN of WORMS the Government and the Tourist lobby have brought to bear on ordinary hard working people who have invested their money here

  • I wholeheartedly agree with you ‘I don’t believe it’ – and thanks for your support Janet, with your comments. It makes me so angry when people make these stupid comments – we were all duped in various ways into buying properties which were not legal. But, the point is, it’s still happening. I was in Los Gigantes over January and February and decided to do my own ‘detective work’ on what is going on. All the estate agents are still openly advertising properties as suitable for rental. I had some friends staying with me and asked them to pose as tourists and go into a certain estate agent where they were advertising an apartment in my complex, which I know is illegal as it’s residential (possibly lapsed touristic though), and express an interest in buying it for holiday lets. They were told it was absolutely no problem and were even told they could be supplied with the contact details of all the previous renters!! No doubt a solicitor would be supplied when signing the escritura who conveniently omits to mention the fact that renting is illegal. I think there’s a conspiracy going on and it’s almost as if the estate agents are working for Turismo and providing their next ‘clients’

    I looked into selling my property whilst I was there. It is in a well known complex which everyone in the village it seems, believes is legal for renting – it’s certainly not as I’ve checked it out. At one time, the apartments were like gold dust and snapped up as soon as they were on the market. This time I counted at least a dozen up for sale, and that was only on the front line where I could see the ‘for sale’ signs. The valuation I was given on my property was, needless to say, less than I paid for it and this despite my having had it totally refurbished with new bathrooms, new pipework, re-tiled etc.

    If John Parkes and co have any more bright ideas, I suggest they keep them to themselves in future. In the meantime I shall continue with my low-key renting, which is about half the level it was when I was advertising on-line and join the other 1000 people in Los Gigantes who are still renting illegally (as I was told by another estate agent).

  • A huge thank you to Janet and the team.
    So now the tourist board inspectors are using plan B to visit and interrogate families staying in apartments etc. How much has this cost the Spanish tax payer 2 years work for 17 inspectors?? Are they not aware that owners will simply ask their guests not to give away any information to anybody.
    When will the penny drop that owners of villas and apartments will continue to rent because they have no choice, and offer licences to owners in return for meeting health and safety standards etc and charging 500 euros for the right for a licence or even 200/300 euros per year per bedroom of the property, surely this could be a win win situation.

  • Am I correct in thinking that John Parkes is the sole letting agent at Paloma Beach? If so, then he obviously has no sympathy for owners who want to let independently.

  • Yes, John is Paloma Beach’s sole agent.

  • This whole issue has had so many twists and turns over the past two years and I have to say that Janet, on her website, has given information on a regular basis, without fear, favour or prejudice and I have never seen a comment from her that ‘condoned’ ‘illegal letting.’
    She makes the correct point that thousands of people were sold apartments as rental investments and this has helped the Islands to prosper over the past twenty years. Having dealt with Jose Escobedo many times I think I am right in saying that (apart from appealing the excessively large fines) he believes the Sole Agency systmen is monopolistic and unregulated to the extent that whatever scheme the individual agent wishes to throw at an owner – they have to accept it – resulting in abuse in many cases (not all).
    Surely, even if the Governement is intent on trying to keep this system in the new law, some form of regulation is requiried to make it fairer and more reasonable to all concerned -both owners and agents who invest their money into the operation.
    I feel it is churlish to say that owners have the option to sell when we all know that this will not help either the owner, or Tenerife, with thousands of properties already for sale in a highly depressed market.

  • Hi Janet.
    Thanks for your response to my “condoning illegal letting” post.
    I accept most of your explanation. However, people who have been “caught out having money thrown at them” do have an alternative; they can legally let their properties with a long term contract. That should cover their mortgage whilst at the same time allowing legitimate owners to enjoy their residential complexes in peace.

  • Peter Berry you spout out as though we are a charity case (“having money thrown at them”) I bet you in the past 5 years we have spent more money in Tenerife keeping our property upgraded to the 5*standard than you have ever spent, let alone all the money our clients have spent here,which I am sure you as a resident have benefited from indirectly.
    Our complex has 63 apartments 34 timeshare 29 outright ownership 90% who rent, not one single person lives there so we have NO RESIDENTS but we are classed as a Residental Complex ( how crazy is that ) But never mind the Spanish dont have any money for Tenerife and with the powers that be stopping us sending clients to spend more money you may think again when services are cut about us terrible people who rent

  • Hello Janet
    It would be helpful if the Canary Government would issue a statement regarding the updated position, so that tourist apartment owners can consider restarting their independant marketing and boosting the Canary tourism/economy.

  • Can I just say that I would never advocate renting (other than long term) in a residential complex as anyone buying on such a complex should be able to expect it to be residential. It is clear that allowing short term rentals on such complexes to become legal will never happen – and indeed should not. I still cannot help having symapathy for any person being fined such a large amount for the ‘offence.’ Proportionality is being tested to the limit in these cases!!

  • Hmmm my comments seem to have offended a few, genuinely not my intention and it seems a little presumptuous to assume I am not sympathetic to people who are struggling to sell their property or find a way forward.

    As I say in my post I realise the market is what It was especially since the clampdown makes selling even harder as you no longer har access to the “buy to let market”, but the fact remains that owners in this situation can try and sell their property. Will you get what you paid for it? Probably not but not many properties do – even paloma beach sells for 10%-15% less than 2006/7 – that’s the property market in general. Obviously unlettable residential properties are not going to change hands at what they did when every thought it was ok to let their property.

    Other options for owners who cannot sells heir property is to long let their property. Obviously this will prevent them from using their holiday home of themselves but it is a genuine option of those who can’t sell and can’t afford to have it say empty.

    I think it’s dangerous I and irresponsible to suggest carrying on and asking people to be coy/lie.

    Says a lot about some people that I am derided for putting honest legal options out there yet the sneaky and dishonest options are received with thanks.

    Nice!

  • Ken, they have issued such a statement. It’s “the law is in Parliament, it will be passed in due course, and you will know what it says then”. No government feels under an obligation to give regular updates on its legislative procedures to those it considers criminals.
    .

    Just a quick word on John’s comment – the advice about dealing with the inspectors is, of course, to those who simply cannot stop letting for fear of mortgage default. As I’ve repeatedly said, the primary advice is to stop letting. I don’t need to tell John the ridicule and opprobium I’ve received for saying that time and again! For those who cannot, however, I don’t really think it’s “sneaky” to refuse to speak to government inspectors who have no legal authority to demand answers, and who go about in disguise.
    .

    Peter, long-term renting really is an option, but for some it is no better than jumping off a cliff. I have a personal friend whose mortgage payments are not too far off double the long-term rent that could be achieved in the case of her villa. The bank has already refused to renegotiate the mortgage repayments in any shape or form.
    .

    Like many others, particularly at the high end of the market, part payment is no different to non-payment as far as the banks are concerned. It is also in these properties that the capital value has decreased the most – the sale value of the particular villa I have in mind is now less than the actual mortgage remaining plus its various cancellation fees. This negative equity situation is why the suggestion of selling doesn’t work, even if buyers could be found.
    .

    The bottom line is that none of these properties were bought, in the main, by property sharks. In my own experience they were bought by normal families, looking for a pension fund for themselves after finding little reason to trust private schemes in the UK, or looking to acquire assets to leave to their children. I know of parents with two children who use their apartments for a fortnight’s holiday knowing that they won’t see it again until the same time next year, but believing and hoping that they would have something at the end of their lives to enjoy at their leisure and leave to their kids, more than their own parents had to leave to them …
    .
    As Portia said to Shylock, the quality of mercy is twice blessed …

  • What I assume is inspired by various court rulings, but probably not the Bolkenstein Directive, when it comes to private independent villas, (not apartments), there is legal opinion in Lanzarote that, most definitely:

    a) Short term letting of private independent villas is not subject to the current tourism legislation and

    b) Even if it is, as turismo believes, under the terms of the 2010 Decree 142/2010, if the owner informs the Cabildo of his activity and declares that the villa conforms with the requirements of the same Decree then the Cabildo is obliged to issue the Complaints Forms and Inspection Book, thus removing the reasons for the fines.

    There is some information in the February edition of the Lanzarote Gazette (Page 14)
    and on the Lanzarote Business Association website.

  • I obviously cannot speak for the particular situation in Lanzarote, but I assure you that in Tenerife the situation you describe for villas is impossible, and it is clear that short term letting of private independent villas is very much subject to current tourism legislation. Many are built on land designated as residential, and for those, the first step is to request the local Ayuntamiento to change the land designation. Then one would need to apply to the Cabildo. Unfortunately, even when properties are on land designated touristic or mixed, one comes flat up against the Regional Government moratorium on the granting of tourist licences.

  • I’m sure the same legislation applies throughout the Canaries.

    I assume, but only assume, that these lawyers have “found” legal loopholes in the laws that you outline. If you read the letter from the lawyers on the Lanzarote Business Association website you will see the statement: “After undergoing some research into the current licencing laws and recent court judgements….” and it that says if the Cabildo refuses to issue the documents on the grounds of the licencing moratorium then they “have already prepared our argument and a good basis for an appeal.”.

  • Beware of lawyers finding loopholes, especially when the law they are supposedly found in is about to be updated …
    .

    The recent Court judgments I assume to be the Bolkestein rulings from the Canarian High Court, and you’ve seen Tenerife legal opinion on that score.

    .
    As far as “an argument already prepared to appeal” a licence refusal on the grounds of the moratorium, why is this not being made freely available for anyone who wants to use it as we’ve tried to make info freely available here? I’m afraid I’m naturally cynical when it comes to dealing with hints about something that I have firm legal opinion about to the contrary.

  • I only know what I read and I guess only time will tell as to who is right.

    In any case, pursuing differing legal opinion seems to be how the law works. Parliament, of whatever country, passes a woolly law and then it’s up to the courts to make sense of it and define it properly. My take on this whole issue is, because the law has not been enforced for the 15 years or so, little of it has gone through court so there is little precedence to take from judgements.

    Of note, however, the lawyer in the Gazette says “Spanish law cannot act retroactively” so if one can take advantage of a loophole ( which, by the way, was my word) in the current law and legalise the activity now then then new law cannot stop the activity going on.
    ??

  • By he way, I’ve just noticed in the Gazette article that it does indeed refer to the Bolkenstein rulings from the Canarian High Court.

  • @I don’t believe it
    .
    It sounds like I am in a similar position to Peter Berry in that I am frustrated at having my residential complex rented out to tourists with 90% occupancy week on week. I would like you to try and understand how it feels as a resident in the way that you are asking people to understand your position too.
    .
    There are many distinct sides here:
    .
    1) People who have bought into a residential complex and expect the complex to be exactly that: residential
    2) People who have bought into a residential complex to let out, knowing full well that it is illegal
    3) People who have bought into a residential complex to let out, but did not know that it was illegal (either through being told the wrong facts or through not performing their own checks).
    .
    For me, the fact here is that both points 2 and 3 result in a commercial gain and are being done to therefore make profit. Now, this commercial gain may be a pension pot, it may be something for the grandchildren or, in my complex, a serious operation with towel/laundry service 2-3 times a week, airport taxis, the whole lot. On the surface it may appear that the “pension pot” approach is not harming anybody, unlike the truly commercial operations, but in my opinion it is no different. Legitimate businesses (hotels, touristic apartments) are being deprived of an income, the government is being cheated out of relevant taxes (some people who let their apartments tell me that they pay tax, but how can you declare illegal earnings?) and people who have legitimately paid into a residential complex are not able to enjoy what they paid for. Very recently I was shouted down for trying to calm rowdy behaviour by a number of tourists who shouldn’t, legally, even be in the building. When I have legitimately paid a huge sum of money and my experience is being spoiled by people who are commercially benefiting from something they shouldn’t be, it is frustrating. And that’s before I comment on the effective letting out of community property (sunbeds, swimming pool, etc), again for commercial gain.
    .
    The point you made above, “I bet you in the past 5 years we have spent more money in Tenerife keeping our property upgraded to the 5*standard than you have ever spent, let alone all the money our clients have spent here,which I am sure you as a resident have benefited from indirectly”, seems to miss the point. Hotels and touristic apartments also upgrade their properties on a regular basis and so the impact that one single apartment has on the island’s economy as a whole is negligible. Now, I accept that losing the lets on a large number of apartments would have a perceived effect of affecting the economy, but here again I still disagree. Would tourists still come to Tenerife? Yes. Would they still have places to stay? Yes – hotels and touristic apartments. Would the government be earning more from tax for these stays? Yes. The touristic hotels also have the appropriate insurances, lifeguards, etc, for the safety of their guests and this is something residential buildings do not, and cannot, have.
    .
    As I pointed out earlier, my building is almost exclusively made up of illegal holiday lets. Now, directly across the road there is a touristic apartment complex and also two hotels. If people love this particular corner of the island, then they can still stay here – and on the same street! And if this building is not let out for short term lets, I don’t see what the problem would be when looking at the bigger picture. I know for a fact that the majority of bookings made for apartments in this building are paid for in cash in England. The agents here don’t officially exist. Now, if the clients can no longer stay here and have to stay in legal accommodation, this is a good thing for the island as a whole.
    .
    I understand that you are frustrated because you stand to lose money and so my final point refers back to the idea of commercial gain. I have run, as I still do, many business ventures (I am not connected to the tourist industry in any way). Some of these have worked and some of these have failed. Have I lost money when these have failed? Of course, it’s the nature of the world. That is the risk I take when I begin or accept a new venture. So what’s the difference here? When an apartment is bought, particularly if a mortgage is used, a chance is always being taken. Whether life savings are used or not, it does not matter. A profit might be made or a loss might be made – this is the decision that is taken at the time of investment. Not all businesses work out and nobody, whether legal or illegal, has a right to demand a profit or claim exemption from laws because of outstanding credit such as a mortgage.

  • Are John Parkes & Peter Berry on the same planet as the rest of us? I’m sure plenty of owners would love to sell but it’s not that easy. We are lucky enough to own our place outright and we only have family/close friends who use it as we never bought on the intention of renting it out anyway. But that’s not the case for a lot of owners and I feel bad for anyone in that situation.

  • I think we all have our arguments and individual cases to put across but long term renters are not necessarily any better behaved or quieter than those renting short term! Lets not forget the original reason for ALOCTA i.e. to try and have the outrageously high fines reduced and to sort out those sole letting agents who take advantage of their position and pay very low returns.

  • Sorry Craig don’t understand where you’re coming from, re-read my posts I don’t think I’m being unfair. I’ve said in both posts that i am aware it’s not easy to sell but renting long term is an option that will bring in the same amount as holiday rentals in most cases (studios, apartments).
    .
    I hear what janet is saying about villas and i support independent villas in perusing legality but I would hate the villas on my residential community home to be rented out to tourists as I would hate to have that around me having chosen to live on a residential community of villas.
    .
    The bottom line is as Ryan says ; not all investments work, just because you got a mortgage for a property and managed to pay it all these years illegally (unwittingly in many cases and knowingly in many other cases) does not give you a god given right for your investment to work.
    .
    The premise that no one knew about the law is true in a lot of cases however on a forum not a million miles away from here there is a guy who bought after 95 knew about the laws, bought another place and rented them both out knowing he was doing it illegally. Now he’s got a big fine and two mortgages to pay…. No sympathy for him on others like him.
    .
    For anyone who genuinely didn’t know then obviously that is a shame and very unfortunate – the law for residential Short term Lettings does not seem likely to change (I think janet and anyone else in the loop knows this) so owners on residential properties have 4 options:
    .
    1. Try and sell the property even if it is at a loss.

    2. Let it long term even if it doesn’t cover the mortgage.

    3. Keep letting and hope you don’t get fined (again in some cases).

    4. Give the key back to the bank.
    .
    Those are the only options – you might not like them but they are the only options .

  • I would just like to respond to Ryans post I would be very worried if as you say 90% of your complex is rented out illegaly. What happens to your complex and your investment if the law is not adjusted and these 90% of illegal renters. Cannot pay their mortgage and had the keys back or they get reposessed. Only 10% of you left to cover com fee,s. Get real and live with it very sad people.

  • Agreed, John … and I agree too about residential villa complexes.

  • Ryan what I do not understand if you say your complex is 90% touristiclly occuppied why did you buy property there, if I wanted to go to Tenerife to be a resident I certainly would not purchase a property in a touristic area, I would do what Janet did buy a property away from the (maddening crowd).
    .
    Your comments about commercial gain are patronizing I have owned and run successful businesses in the UK for over 30 years I have a company accountant also I employ a tax adviser in Tenerife not once has he informed me that any tax on the profit I have made should have been paid in Tenerife and not in the UK. Your assumption that I will lose money on my investment is also incorrect I actuality purchased it for family and friends and only let it so it was not empty for months at a time (again helping with the employment and investment as I spent around 2000 to 3000 euro on cleaning alone) these are the hidden amounts of money that people spend in Tenerife every year that rent
    .
    John, you have not been reading Janet’s comments giving back the keys does not eliminate your financial obligation to the bank in Spain so therefore some people have to break the law just to survive

  • Thanks janet.

    It has to be said that the main obstacle for independent villas is the moratorium – once that is lifted so long as the land is ok for tourist use its all go.

    But lets be clear that its the moratorium messing things up for independent villa owners not the 1995 law.

  • Yes, John, agreed, though the Ayuntamientos are also not helping. In one case I was helping with, the villa concerned was in a generally tourist area but the plot itself was categorized as residential. The Cabildo said they wouldn’t even hear an application until and unless the Ayuntamiento was prepared to reclassify the land to touristic, or at least mixed. The Ayuntamiento wouldn’t hear of it.
    .
    This also seems like a good moment to introduce THIS article from belegal on the dación en pago, which is the legal way to hand the keys back to a bank. It can only be done with prior agreement from the bank, something that is very rarely granted (though this is beginning to change a little with the number of suicides and opposition from Ayuntamientos and the like). I’ll add it to the links page as well, along with another link to the Spanish Bank Ombudsman information (both links should have been long since added … )

  • Totally agree with I Don’t Believe It…..why on earth would you buy on a complex so highly populated with tourists Ryan and then moan about them being there? And Dai220 is right……if those apartments weren’t rented out and the apartments became vacant then the community fees would die a death along with your beloved complex! Oh and John there isn’t the same market for long term lets that there is short term! You come across as bitter and sad.

  • Craig I’m not bitter at all, I’ve got no need to be I have several properties on a legal complex! You’re personal attacks are childish and pathetic.

    Have you considered that Ryan bought on a residential complex either:

    1. Not realizing it wasn’t been used as its legally meant to.

    2. Bought on there before the others started rented out.

    3. Bought on there before it was noticeable and it’s now got out of hand.

    Incredible that people who know the laws and buy on a complex that fits their purpose are ridiculed for buying on a complex that is illegally letting – yet we’re all supposed to feel sorry for people who didn’t know the law and Misused their property!

    Craig I’m not a cactus expert but I know a prick when I see one.

  • Seriously; Ryan is apparently an idiot for buying on a residential complex thinking he could expect there to be other residents…… yet people who didn’t do enough/any research or swallowed a load of bull or new the laws and deliberately ignored them are all victims ????

    Mental

  • Bought on a tourist complex its full off resident wish theyed gone and bought on a residential complex there a aboslute menace!no consideration for tourists!

  • ^^^^ definitely works both ways that’s for sure!

  • John, you want your cake and eat it, we who were misled and in fact lied to are “mental” yet somebody who wants to live on a holiday Island is not an idiot because he has not done “his” research, your comments like Ryan,s are insulting, naive and downright rude

  • Let’s keep it civil, please …

  • you are misinterpreting my comments.

    I was calling the logic of it mental.
    .
    Ryan bought a residential apartment on a residential complex after doing his research. surely he is entitled to expect what he bought into ?
    .
    Comparatively owners who bought on residential complexes and were duped/told they could let them out clearly did not do their research sufficiently and were wrong to let them out according to the law – wether they realised or not.
    .
    From the logic i referred to as “mental” it is claimed that Ryan is somehow stupid or naive to expect to receive what he has researched and purchased based on the legal status of the complex – he didn’t take a salesmans word for it, or the Bloke in the pub , he did his research and bought on a residential complex because that’s where he wanted to live – and yet he’s somehow wrong?

  • My only reply to that is if as Ryan claims he has 90% touristic activity in is complex his research was not that good.

    As for myself when I employ professionals in a land that I do not talk their language or live I expect them to explain any problems that may occur that is what I am paying them for!

  • The so called illegal rentals of tourist apartments appears to be a bit of a farce. Firstly the 1995 tourist laws should never have been retrospectively applied to tourist establishments built before 1995.
    Secondly there is nothing wrong with the inspectors using the internet to uncover infringments of the 1995 law, however they should have then obtained concrete evidence of each case. Thirdly the Canary government should have been aware of possible monoploy problems & EU legal challenges. However I am now a bit rusty on EU rules, but I was once advised that there are certain circumstances when Governments can argue against some rules if it is in their National Interest to do so, perhaps the Canaries tourism falls into such a category.

  • The point about the inspectors needing to obtain concrete evidence in addition to the internet investigations is, of course, exactly the issue in the above post!
    .
    In terms of “EU challenges”, however, as I’ve said many times, the Canaries has “ultraperipheral status” which gives it special status in Europe, and which is why the EU allows it to be what we would call protectionist in its policies. The EU allows the Canaries to have its existing and proposed policies, and it has been challenged twice in the European Court and the Canaries has won. It is pointless hoping for some sort of EU finger-wagging exercise, telling the Canaries “to stop it and behave”. It will not happen.
    .

    There’s no issue of monopoly. The success of three appeals in the Canarian High Court (I understand some are saying it’s “the first three” to reach this Court – this is not correct) on the grounds of the Bolkestein Directive appears to be connected to agents, not individuals, but how this will end up relating to the Canaries’ EU-given right to be protectionist, we will have to wait for considered legal opinion as to its actual interpretation.

  • Hello Janet
    Many thanks for the rapid response, however is it possible for the Canary Government to appeal against Canary High Court decision by taking the issue of the Bolkenstein Directive to the Supreme Court in Madrid, on the grounds that the Canaries have “ultraperipheral status”.

  • Yes. I’m sure, however, that the Canarian Government, like Alotca laywers, are studying the TSJC rulings in detail and taking great care to interpret them correctly and with full reference to Canarian, Spanish and European law. These are experts in jurisdiction, juristry and legislation, and they do not give snap judgments. I think we will all be better served by waiting for their reports. It may take a while, but at least we will be able to trust what we are told when it comes.

  • The only thing I would like to ask .
    If the 1995 law was contoled and acted on, and only all new build,s being built since 1995 were for residential only.
    Would they have all been soled for residents.
    Would the island have grown so quickly.
    Would tourist have been able to come during boom years with out good quality self catering accomidation be it illegal residential.

  • Can I also reiterate and stress this part of my post:
    .
    .
    The second point is that there appears to be misinterpretation of a proposed clause in the new law currently in Parliament about a two-year period of grace: again, this refers only to tourist apartments, not residential, and specifically to a period of grace for tourist apartments to be brought up to the minimum standard which the new law will also define. The new law, as proposed, does not envisage a two-year period of grace during which illegal letting may be carried on with impunity.
    .
    .
    In other words, those already at minimum standard enjoy NO two-year period of grace, and in all circumstances, rentals must comply with the law or fines will be imposed. The only “grace” is for rentals which are below minimum standard: these will not be fined for that fact while being brought up to scratch.
    .
    This is, of course, according to the proposed new law, which is not through Parliament yet ….

  • Janet I dont think you can answer this but I would like your expert comment or anybody else who may have legal information.

    As I have said in the past our complex has 63 apartments 34 timeshare and 29 outright owners although not one single person is a resident and not likely to ever be. The complex is 5* RCI rated but is classed as residential. Its only occupants are holidaymakers week in week out 52 weeks of the year. why can,t it be reclassified as Touristic

  • Hopefully the new law will take care off the substandard accomodation that is presenly offered on some tourist accommodation will they appoint inspectors to make sure they come up to standard?.
    Ken touched on the 1995 law being retrospective if they had clamped down on this and made it one agent on one complex at the time they would have shut down our other onsite agent this did not happen still open now and cleaning and renting out apartments on the complex opetating under one licence. I been told there legal to do this although others have may have diffirent opinions.
    Even if you purchased in a tourist complex its not without its problems not all are as reasonable as on my complex or on Johns the returns that are offered are very small ie €4000 you can only use it for a few weeks a year it asking a lot for people to invest money for such small returns and then what happens if the agent doesnt want your apartment or doesnt rent it .
    My opinion is that you should be allowed to advertise your apartment on the internet as long as its looked after the onsite agent off course some wont agree with this either.

  • I don’t know, IDBI, I only wish I could help. It will probably be for reasons connected with the original build licence, or maybe the land classification of the plot on which it was constructed. Beyond that, it’s for the lawyers to sort out. I’m sorry.

  • Quote from John Parkes……”Craig I’m not a cactus expert but I know a prick when I see one”…….oh please! Frustrated comedian? Or just a childish prat? I know which one I’ll go with. What a melodramatic idiot!

  • ^^^^^^ zzzzzzzzzz

  • OK, peeps, please just keep comments on the point. I know feelings are strong, and John himself gets a pile of vitriol at times for being one of what’s seen as the devil’s own brood of sole agents, and the pro-residential and pro-tourist complex opposing sides are never going to see eye to eye …
    .
    Let’s just be civil because the bottom line is that these decisions affect us all to a greater or lesser and direct or indirect extent. We gain nothing by allowing positions to become entrenched, and to fall out among ourselves.

  • He’s a nutshell view how urbanization’s and their plots are classified.
    .
    I purchase a massive plot of land, divide it into different areas, remembering that this urbanization has to be sustainable.
    .
    A percentage of the urb. needs to have areas designated for education, tourism, residential, parks, religion, commercial zone etc etc. (it’s all about inhabitants and sustainability)
    .
    These plots soon become divided up and purchased individually.
    .
    Land therefore within that Urb. can only be reclassified if it is swapped place with another plot within the same Urb. maintaining the same infrastructure and sustainability.
    .
    But i doubt anyone would want to swap a touristic classified plot for residential classified plot.

  • Agreed janet us kids will behave x

  • But he started it!!!! Hahaa

  • Hello Janet
    Again thanks for trying to keep this website chat at a reasonable level, we all understand the frustration of the differing factions, Sole agents/independant agents/individual owners. The bottom line is that we all want the issues understood and settled, this is not a war, but the issues do need to be aired, if for no other reason than to vent off the frustration with the prolonged uncertainty. If I were running the Tenerife tourist industry I would try to get this matter settled ASAP.

  • This post will be closed down again because the same people are fighting each other. This is for information please use Tenerife forum Illegal letting to fight Let Janet use this site for information good or bad

  • Some random pictures of our complex and my apartments vista have found there way on to an estate agents website to promote an apartment there selling on that complex. Those pictures are mine but put on there without my permission but I can not make a fuss because I cannot prove they are my pictures taken by me.
    You can see how unsafe details from websites are

  • Bugger it. I am now getting emails telling me that there is now a freeforall, that renting can be resumed with impunity.
    .
    THIS IS NOT TRUE. Fines are still being issued. The law must still be complied with. The law is that:
    .
    - Residential property may not be rented for holidays under any circumstances. It may be long-let, and for minimum periods of 3 months.
    - Tourist licensed property may be rented for holidays or long term. If long term then it is a matter between owner and tenant. If for holidays, then all bookings must go through the onsite sole agent. This is true for travel agents and owners.
    .
    The law is clear. There are three rulings by the Canarian High Court which apparently concern the activity of agents, and these are being investigated by Alotca lawyers (and presumably other lawyers too) at present, but it seems they concern travel agents only. Nothing has changed for owners or sole agents.

  • You’ll never win Janet.

    There is a minority out there who have been breaking the law for years and want to maintain the status quo; they latch on to anything that can be twisted to suit their arguments to do so and either totally ignore everything which doesn’t or try to shout down the person who posts it.

  • Yes, I know, Bob, though it’s very frustrating! What I can confirm, unequivocally, is that what I’ve posted here is formal legal advice.

  • Ok, I can rent out my apartment on a residentially licensed complex for a minimum of three months, but not as a holiday let. What kind of let would it be then, presumably to folk working out here with NIE’s etc. how would that be policed please? There are plenty of folk renting three months at a time on residential complexes, but they are here purely on holiday, have their country of origin as England, German etc., don’t have NIE. Are they deemed to be illegal lets? Thanks again for your wonderfully resourceful site. You can’t have any free time in your day but believe me you are so appreciated Janet.

  • Thanks angiebabes! Could you have a read HERE and see if it explains the different types of residential complex, and how they interact with tourism legislation? Any questions, of course, please post again.

  • Hi Janet, Are you saying that even on a residental complex unless the rentor has a nie No we can not rent it to tourists for min of 3 to 12 months

  • I’m afraid so, M. The legal contract for a legal short-term (i.e. more than 3 months) or a legal long-term (i.e. a year or more) must contain all details for owner and tenant, including NIEs …

  • Hi Janet, I need some information regarding who should be responsible for reporting owners who rent their apartments short term on residential complexes. We have been told any owner can report illegal letting to the appropriate authority but I fear that this can be very dangerous for the individual if names were given. I’m not being a coward but why can’t this be done by the administrator? If an owner reports to the administrator another owner who they knew was illegally letting, why can’t they report it instead? Can you tell me if this is possible?

  • It should indeed be done by the administrator … but some administrators are more prepared to do it than others …
    .
    Ideally, the situation would be brought to the attention of the president who would then report it to the administrator. This stage can be sidestepped if a president is unwilling for any reason to take it up with the administrator. The issue can even be put on the agenda of an AGM, and the community can instruct the administrator to take action.
    .
    This action should comprise a letter to owners letting illegally, advising them to stop advertising immediately upon threat of further action. If they continued, then “further action” would be taken. This could take several forms, including a direct report to Turismo, independent legal action through a lawyer, or a community fine … it depends what’s been agreed by the community.
    .
    To give one such example, in the case of the residential complex where we own an apartment, the administrator knew that the community would not tolerate holiday letting, the community was residential (to the point that it was written into the statutes that it could never even make application for a tourist licence) … and so the administrator took action without any complaint needing to be made. She saw an advert and fired off a letter.
    .
    Where you have an effective administrator like that it doesn’t take much for people to believe that firm action will follow. She was successful on each of the few times she sent the first communication so it never needed to go any further. I’m aware of it because she copied the president, my husband, into everything she did.

  • Janet

    Is there something on island connections today about this subject? Heard from someone in Tenerife there is but cannot locate it from the UK?

  • Don’t know K … :/
    .
    edit: just had a look at the online version and can’t see anything …

  • It’s the same article as in tenerife news by John Hatrick

  • ah … all I can say is what I replied to an email on the subject:
    .
    I’m afraid it’s incorrect, and contradicted by the Alotca lawyers. What I have posted is formal legal advice from them, and I note that the piece referred to specifically says it “does not amount to legal advice”. As I’ve posted, legal advice from Alotca lawyers is that nothing has changed as far as individuals are concerned.
    .
    The three successful appeals referred to are in the eastern province, not in Tenerife, and specifically are those of agents, and even then, just for not getting prior permission before starting their business operations. It is this that is in conflict with the Bolkestein Directive … “legal advice” is that it is this and nothing else.
    .
    I fear that people will get in trouble if they rely on this article and consider there now to be a free for all in terms of letting, not least because inspections continue, as I posted, with inspectors presenting themselves as quality surveyors. The article says that inspections have been scaled back. Alotca lawyers have confirmed this is not the case.

  • Hello Janet
    It is very unfortunate that the article written by a certain lawyer appears to be very misleading and has now been printed by two Tenerife newspapers. The article is likely to be used as a sales tool by those trying to sell touristic apartments, particularly when asked a searching question about buying and then renting out, the sellers will simply refer to the legally drafted article and then suggest that everything is ok!!!!!!

    What is needed is clarity and not further confusion by some irresponsible newspaper articles. These newspapers should amend the articles or retract them.

  • There is clarity on my site, with free formal legal advice courtesy of two of the most renowned Tenerife lawyers whom I value and trust as colleagues and friends. It is unfortunate that there is confusion, and that’s particularly so when that confusion is being used as a sales tool – I would have hoped that those days had gone.
    .
    I would stress two things, first that the information and advice that I post is from Alotca lawyers. It is free and disinterested – no-one could argue that they benefit from advising people to stop doing something that if continued could bring them in paid work.
    .
    Secondly, that the advice is precisely that – formal legal advice. What I have posted here isn’t an opinion piece. It’s the legal situation and formal advice informed by the two lawyers handling the overwhelming majority of cases of fines in Tenerife. It is also, I might add, advice from lawyers who have held meetings at every business, political and legal level up to the President of the Canaries himself. They have taken Alotca’s arguments and lobbying to the absolute top, which is where they also have their information from.
    .
    Beyond that, people will believe whatever suits their causes, I’m afraid. At least they will know where the Alotca lawyers are when they have a fine to appeal.

  • Hello Janet
    Many thanks for the rapid response, it is very much appreciated and I certainly hope your readers take note of what you are saying.

  • It is so refreshing to be able to obtain FREE, reliable advice on this website. So often out here in the Canaries, for every situation one finds oneself in, there are half a dozen differing advice sources leaving one totally befuddled, not to mention what is the law and what is interpreted by “lay people” as the law. Power to your elbow Janet – you sure need strong elbows to keep up the flow of typescript on a daily basis!

  • Many many thanks for your prompt response Janet (23 minutes) to my question re ‘can the administrator notify the touristic board instead of individual owners about illegal letting’? I only wish that the powers to be can be as prompt as you have been.

    Many thanks for keeping us all well informed.

  • Thank you all !

  • Can I possibly ask what minimum term is considered legal for renting.
    Is 3-months OK.

  • Yes, it is. Please read HERE, I hope it’s a full explanation.

  • What is the situation with regard to offering Bed & Breakfast from your own property?

    Is it the same as for rentals or is there a different set of rules involved?

    Thanks for any advice.

  • It’s a different set of rules, I’m afraid. In short, you can’t, unless you’re licensed under a range of types of tourist property, e.g. casa rural, casa emblematica ….

  • Hi Janet its been a while since I have been on the forum , but still read it weekly. As President on our community I would like to thank you and the forum for the information I have received from it. It has been most helpful to me. I was interested to see Craig is still as angry as ever ha ha.

  • Thanks John, kind of you to say so.

  • Ha ha ha…..not angry at all. Nice to see you take such an interest in my posts.

  • Interesting update janet, nice to have concrete proof that some people just write total bol………kestein in the press

  • The lawyer who has put the article in both tenerife papers states you shoud not receive a fine but if you do to instruct a solicitor straight away . So he says its ok to rent out ilegaly but if you get fined its ok as you can go to him and I will act on your behalf thousands of euros later in fees. Im sure the Solicitors you talk about on here that have given free legal advise would not be happy with the article he has put in the paper. Niether will the tourist board who confirm you have to be registered with them to rent out your property on a touristic complex.

  • Regarding the misleading legally drafted newspaper articles, surely the Tenerife legal profession should give the author a reprimand for adding confusion to the illegal letting issues. The newspapers should retract the articles and apologize to anyone who has now committed an offense because of what they had read from the articles.

  • First and foremost, I am not going to get into, nor have appear, any potentially defamatory comments about anyone, let alone a lawyer! I think it’s important to remember that people have jumped on what appears to me to have been an opinion piece, jumped on it because it suited them to believe what it said.
    .
    I think it is equally important to remember that the writer himself said that the piece should not be taken as “legal advice”, and that people should approach him personally if in need of legal help because they’d been fined.
    .
    This, in my personal opinion, shows clearly that the writer himself acknowledges that illegal letting is still being fined! How else can the remark be interpreted?! The most important thing, however, is interpretation of both the Bolkestein Directive and the resulting Canarian High Court judgments. This is not a matter of “opinion”, nor open to “interpretation”, despite the rabid belief of those who want to jump on anything that supports their desire for a freeforall in illegal letting.
    .
    The Bolkestein Directive and TSJC judgments are as clear as day … at least when it comes to this issue … and refer to companies’ freedom of operation throughout Europe without interference or limitation from another European member state. It is not a matter of “inference”, nor of “interpretation” or even “opinion” that they are prohibited from breaking local laws! They are allowed to trade without restriction … but they must trade legally!
    .
    This is the sum extent of the meaning of the Directive and the TSJC judgments. That an opinion piece was put in a local paper, perhaps as an advertorial, and that some who are breaking the law jump on it because it supports their fantasies, seems to me to be completely irrelevant to anything.
    .
    I think the author had the right to write what he wrote, and the papers had the right to publish it. It is the readers who are at fault. They do not have the right to suspend belief in reality, and delegate responsibility for rational thought … particularly when it creates an environment of confusion which could result in devastating fines for people who are less informed. Make no mistake about it, however – it is the readers who are at fault if they believe an advert while ignoring professional legal advice.

  • Any updates on the law enforcement on Lanzarote. I’m intending of buying this year. Many thanks

    Louise.

  • Louise, the law in Lanzarote is the same as anywhere, and the enforcement is the same as I’ve been posting about for the past two years. I can’t be more specific or detailed, I’m afraid … it’s not humanly possible!

  • Hi Janet

    You might like to point anyone asking about the Bolkenstein Directive to THIS web link. It’s the official English version of the Directive from the EU. It’s hard going but also enlightening. As far as I can tell, it is aimed purely at businesses wishing to trade across EU state borders

    E.G. Company based in UK wanting to trade in Spain.

    It also states quite clearly that all Companies doing that MUST comply with National law of the other country they wish to trade in.

    More interestingly are the levels of consumer protection it affords recipients of a service from such companies

    E.G. They must have adequate Public Liability Insurance, they must comply with all HSE laws in that country.

    It also states that each country can introduce local laws to protect any service area which they see as being vital to their economy

    Regards

  • Is there an online version of the newspaper articles that are being referred to?

  • Hi Bob, thanks for that. Yes, you are absolutely right, the Directive is aimed purely at businesses wishing to trade across EU state borders, and it is quite clear that they must do so legally. The only issue with these judgments is that the Canaries required them to get prior permission to trade, and the Bolkestein Directive doesn’t allow for that. In all other aspects, Canarian law stands, and must be complied with.

  • IP. I can’t find Tenerife News online, it seems the domain has expired, and I can’t find the actual article in Island Connections though I found it a few days ago, so I don’t know if it’s been removed. The paper itself is HERE. Tenerife Weekly will have an article on the issue in this week’s edition.

  • No matter. If it was an advertorial then perhaps it has/had a limited life.

    Is there a link to the particular Canarian High Court judgement?

  • No, fraid not … I have it in my possession but I don’t have permission to disseminate it.

  • Hello Janet & IP I think the legally drafted article was firstly in the Tenerife News, then later in the Island Connections and it can be found on the internet, Island Connections, edition 691, page 18, under the heading Property Law and it is directly below an estate agent article.

  • Ah, thanks Ken! It’s HERE.

  • Janet … When are the 1st cases due in court?

    Will these cases set a precedent for the rest?

    Thanks

  • The first cases are already in Court … not sure exactly when they arrived there but the appeals are in, which is why the extra argument about the Supreme Court judgment had to be sent in after them. As to when they’ll finish … could be up to a year or so, I’m told. As for precedent, not really: precedent has a very different meaning and function in a civil law system such as applies in Spain and most of Europe to the common law system that we’re used to in the UK, and which applies in most areas which were part of the British Empire and commonwealth. It’s only in common law that precedent is binding in subsequent cases.

  • Thanks.

    So when are the 1st results/decisions expected?

    Say for instance the 1st cases are thrown out or fines reduced, would that be expected for simmilar cases lodged?

  • As I say, I’m told it could be up to a year or so, and the first results might logically be expected to be replicated, but there’s no juridical requirement for them to be similar because precedent doesn’t play the same role in Spanish Courts as it does in British ones. In short, we don’t know when, and whatever the results, they don’t have any specific legal significance for other cases.

  • How does this effect a UK business like James Villas?

  • I’m afraid I don’t know, I’m sorry.

  • James villas are I think a uk company So they can work in other eu Countries but they have to follow tourist laws in those other countries.

    This means that unless the villas they are renting in tenerife are tourist board registered then the activity is illegal.

  • Janet, if you can’t disseminate the judgement, does it have a reference that you can reveal?

  • no, I’m sorry, I don’t think it’s available online. I have it in email form. I apologise but I can’t make it public. It is a private Court judgment, not a public document, at least in the form I have it.
    .
    John, yes, of course, how straightforward.

  • IP, I think the most I can publish is this:
    .
    TSJ Canarias, Las Palmas de Gran Canaria, Sala de lo Contencioso-Administrativo, Sec. 2.ª, 193/2010, de 7 de diciembre
    Recurso 189/2008.
    .
    (the dates alone will show to those who are in denial that the appeals have nothing to do with the clampdown on illegal letting which started in early 2011 … )

  • Hi Janet. You mention on the 24th September 2012 that there were New formats for touristic villas and that the new regulations would come into play immediately. What were the regulations did it not happen?
    But there now seems no mention of this. We seem to be back at square one.

  • Sorry, Phillipa, there’s a confusion over the word “immediately”. I meant immediately the law comes into force, rather than the two year period up to 2015 for restrictions to 4 and 5* licences. The villa issue becomes law immediately the law is passed, rather than immediately at the point I posted the information.

  • Is THIS it?

  • That’s the one. I hadn’t realized it was online. The version I have has a legal editorial and opinion with it, but your link is the judgment itself. It doesn’t once use the word Bolkestein, as I can see anyway, but it refers to Directiva 2006/123 – which is the Bolkestein Directive.

  • (I think “Bolkestein” is just a “nickname” for the Directive.)
    .
    The Lanzarote Gazette article that I referred to on 16th March says “Mario Izquierdo’s advice follows the case of a Tias resident who was fined for illegal renting and who appealed under the recent European Bolkestein Directive, which governs free trade in the EU area. The court found in favour of the villa owner, and a firm judgment was issued which acts as precedent in similar cases.”
    .
    Clearly, then, this is a different case/appeal to the one we have been referring to here since it involves an individual, not a company, who lives in Tias (a Lanzarote municipality) and a villa, presumably in Lanzarote, and not the Hotel Apartamento Monica Beach.
    .
    Mario Izquierdo is a Lanzarote lawyer and it is his firm that is advising independent villa owners (not apartment owners of whatever status and not just companies) that villa rental can be legalised in the manner that I mentioned at that time.
    .
    It’s interesting that it appears that this legal advice is different to that being outlined in this thread. But is that not just the nature of how the law works? Lawyers disagree

  • As I have said before, Alotca lawyers say they have no knowledge of such a case. They say, moreover, that the Bolkestein Directive has no relevance to private residential properties at all. I have suggested to others that they ask the lawyers claiming this victory to provide a link or some documents because our lawyers here in Tenerife can’t find the judgment.
    .
    The EU web pages explaining the Bolkestein Directive are HERE. On the quick guide page HERE, it says that the Directive applies to businesses and individual services providers – and includes tourism. The problem for those who argue that this applies to people letting privately in the Canaries is that the Bolkestein Directive applies to those who are offering those services in another country who then want to expand and operate in the Canaries. As the EU’s own help pages say: “This reform will in particular facilitate the life of service providers, notably SMEs, who want to set up new or expand existing businesses or provide their services in other Member States on a temporary basis. ”
    .
    In any case, anyone doing so must still comply with local law. That local law prohibits the letting of residential property under any and all circumstances, and allows for the letting of tourist properties only through a sole agent … and that local law is permitted because of the Canaries’ Ultra Peripheral status, granted by the EU itself and acknowledged as permitting restrictive and protective tourism legislation.
    .
    It is important to note that the only Bolkestein Directive judgments for which we have actual evidence are concerned with agents setting up without an opening licence – something which the Canaries was trying to enforce, but which they now have legal confirmation that they don’t need.

  • Janet, you say “The local law …. allows for the letting of tourist properties only through a sole agent” but in the case of stand alone independent villa would that sole agent not be the villa owner?

  • Well, villas are outside of the law as it stands, effectively. I have been involved in the attempt to legalise one, and the problem was twofold: first, that there is a moratorium on issuing licences by the Canarian Government, so even if one was technically possible, it would not be granted because of the “rolling ban” – something that the Government says it is going to incorporate into the new law so that they don’t have to keep renewing it.
    .
    The second and most immediate problem is that a villa needs to stand on touristic designated land. In the case of the one I was involved with, the plot was designated residential by the local Ayuntamiento, and unless that land was touristic (or at least “mixed”), a request for a licence (which would in any case be refused because of the moratorium) would not be possible.
    .
    As a necessary first step (as confirmed by legal advice), the Ayuntamiento was approached with a request to redesignate the land and refused point blank. And that was in an area with hotels, and which many see as part-residential and part-touristic.
    .
    So there’s a long way to go to legalise a property for tourist use before we talk of the status of the owner or “agent”, and even then one just meets a brick wall because of the moratorium.

  • Janet,
    How do you find out if your Villa or Complex is built on designated touristic land.

    The reason I ask is this, our complex which was purchased from Wimpey Leisure SA in 1997 & it was to form part of an association that already included 2 previsouly built complexes that are adjacent to ours & both have a Touristic licence but ours as we have now found out is classed as Residential, and as I have said before with not one single resident

  • The Ayuntamiento will have it recorded, M, as part of their general ordenation plan.

  • We now have a link to the three cases discussed in the article – perhaps Janet could transfer them (post 6246 on that long running thread!). As suspected, all cases refer to businesses – going from being absolved of having to ask prior permission to trade as a business due to EU law, to a free for all not having to fulfil any other requirements is quite a stretch IMHO.

  • oops post 6426 – sorry

  • My apologies – that last link re Surfing Club Aquila is in fact wrong – that is a more recent appeal in 2012 against their closure (which they lost) Will try later to find the 2011 case referred to.

  • Thanks, Doreen … if you copy it into a post, I’ll change the earlier link.

  • Hello Janet
    I have just read your article in the Tenerife Weekly, it seems to clarify the situation and it reflects what many others think. I hope everyone else takes note of its content and warnings about the substantial fines.

  • Thanks, Ken. The paper is HERE (article is front page, or at least just inside the front cover) for anyone who would like to read it.

  • Hi Janet

    You can’t spell it out more clearly that your article but I bet there are still people out there who will argue that you are wrong !!

  • don’t talk to me about “spelling” … there’s a “centers” in there which should be a “centres”. Damn Microsoft autochange!
    .
    Thanks Bob.

  • We have a villa on a Touristic complex which has a Sole Letting agent.
    The SL rents out several villas on behalf of owners who do not want to get involved with renting and accept a net payment for each rental. We do our own advertising and letting and are classed as Ad Hoc clients within the SL, we pay the SL a fee to represent us at the Tourism office and for Reception and management and cleaning and servicing. We take our own letting income in the U.K. and pay the SL fees, no problem. We also have a Spanish accountant who presents our income tax each Trimestre which is gross less expenses. We have just registered for I.G.I.C. As we are told that we have to now charge this at 7% on all rentals.
    However we now have a situation that the SL say that they are ultimately responsible for us paying tax they want us to pay the gross 24.75% tax to them each month for all weeks let and they will present the tax each Trimestre and refund us the allowed expenses at the end of each year.
    This seems quite a performance and will effectively end a long and mutually acceptable association with our current accountant and it will mean that the SL is holding a considerable amount of our money for 12 months. We would have no control of our money and could be concerned if the SL had financial problems.
    Is this procedure correct?
    How do other letters in our situation cope with this or arewe unique in the Canaries?
    Any help gratefully accepted.

  • Hi Steve, you mention “owners who don’t want to get involved with renting”, but the reality is that they are not allowed to get involved with renting at all. Could you have a read of THIS post on the Illegal Letting Q&A page HERE and see if it clarifies your situation? The law is that your agent must take all bookings. You cannot take any.

  • Janet Do you know off any owners who have been fined for advertising on the internet and doing there own bookings.David

  • Sorry ment to say on a tourist complex.

  • Yes, David, afraid I do.

  • Dear Janet,

    Once again thank you for your valued and informative site, although sometimes I wonder what the Tenerife Government want it is a pity some of them did not talk to there counterparts in Portugal before these actions.

    They have destroyed peoples hopes and aspirations on this Island the way they have behaved, if I was an Agent I would start worrying they are only ONE step away from STATE controlled Tourisim and we all know when Governments get involved usally it ends in disaster, old saying ( if it aint broke DON’T fix it ) but I think it is a little too late now.

  • They aren’t interested in Portugal, M … the Canaries have ultra-peripheral status, so they are in the mindset of (and permitted) measures that would be deemed protectionist elsewhere. So yes, state controlled tourism, and allowed by the EU.
    .
    All we can hope is that they’re right in their vision for a niche and upmarket holiday destination.

  • I just hope their vision includes sharing the wealth with the local population and not creating a two-tier society with wealthy tourists and government officials on the one side and impoverished locals on the other, forced into the residential ghettos left out of any modernisation plans. Don’t want to create another Dominican Republic.

  • Petra,

    Be aware what you say, they are only interested in the up market Tourists why should they spend money on the residential parts after all you will only be employed as a lackey at their beck and call ( 3rd world comes to mind ) or even ( you reap what you sow ) this should be the Hotel lobby and Governments new motto

    As Janet has said many times the EU allows them to be protectionist why should they care about YOU

  • Can we take it this that the campaign has failed?
    Nothing will change and the only accomadation available will be on tourist apartments and hotels?
    Be careful what you wish for the some complexes with long term lets are shameful, you wouldn’t want to live on road let alone the complex.

  • If you mean the Alotca campaign, then it depends on how you class failure. The situation is now much more known about by people likely to have been fined; the government has shifted, albeit only slightly, on the issue of villas; and we hope that the lobbying wil have had some influences on legal judgments when the appeals come to an end – if not in terms of actual judgments, then in terms of fines.
    .
    Moreover, given the stated intention of the government to tighten up their tourism policy, it was important to make a co-ordinated approach to the likes of Holiday Lettings and Owners Direct to inform them, and affect their policies on advertising. This has been done at corporate lawyer level, so quite high up, and this has been a very fruitful avenue with a considerable level of success.
    .
    We were never aiming, and said this, to make tourist accommodation available in residential complexes, nor to do away with sole agents. Our aims were to encourage flexibility in tourism policy, get the fines reduced, bring awareness, and get consideration for villas included in the law as well as some mechanism for regulating sole agents, at least the rogue ones. I think we’ve done pretty well.
    .
    This is now the 150th comment on this post, and beyond this it throws things out of kilter. The comments will either spill onto a second page which requires yards of scrolling (unless I reverse the order with last comment first, but that then affects the comments to other posts) or, if it goes beyond 150 on a single page, it starts becoming unreadable for people – I have no idea why this happens, but some posts are literally “blacked out”. So, I’m closing this post to comments now. As soon as I have anything further to say I’ll make a new post, and the comments will start again … I’ve no doubt!(edit: actually I have an idea for one … off to start it now).

Janet Anscombe
Tenerife News
October 2014
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