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.