Q&A on illegal letting
Inevitably with such a complex and convoluted situation, confusion reigns. I am happy to use this page to answer questions people may have about the illegal letting situation: please add your questions as a comment in the box at the bottom. I have selected the most commonly-asked questions, and those that are most basic, and put them in the text immediately below.
I would also appreciate it if we could keep this page for general questions rather than specific ones – unless the specific circumstances might be considered generally helpful. If you have specific, or confidential, questions, then you are welcome to email me – either use the contact me page, or email help@janetanscombe.com
Please note that immediately below in the main text section are those questions which are either basic, or which are repeatedly asked. I’d be grateful if you could just check that your question isn’t already there, with its answer, before posting. This page is now full for comments. There is a second page for further Q&A HERE.
Q: How do we find out if we are on a particular Government list for a fine for illegal lettings?
A: If you have been fined, a letter will have been sent to you. You have 15 days from receipt of this letter to appeal so contacting a lawyer is urgent. If for some reason the letter cannot be delivered, it will be returned to the Government and they will publish its (and your) details in the BOC, a daily Government publication (link is HERE). If you have not received a letter but think you might have been fined, you need to check if you have appeared in the BOC: there is a search box top left on the page I’ve linked to – enter your NIE in there (and then change the year and try again). I myself have found the BOC’s search system less than desirable, and find google gives just as good results: Google your name, NIE, and “BOC”, and if there is an entry, it should appear as the first result.
Q: Exactly how I should enter my NIE in the Google search box?
A: The format is x1234567y with no spaces or hyphens.
Q: What is Alotca, and what is its agenda?
A: Alotca is a legally registered Spanish association formed to lobby the Government in connection with its tourism legislation, and to help those affected by it. The initials stand for Asociación de afectados por la ley de ordenación de turismo de Canarias (Association of those affected by the Canarian tourism regulation law). The association lobbies to create an atmosphere in which the fines as imposed are seen as monstrous which it is hoped will affect both Government policy and legal judgments when fines come to Court. Alotca has had many meetings in political and business circles throughout the Canaries, not just in Tenerife, including up to the very President of the Canaries, Paulino Rivero, himself. On the legislation front, those meetings themselves were used to lobby for changes such as were humanly possible to persuade the government to envisage. By its nature, lobbying involves application of pressure, which by its own very nature, requires discretion and “diplomacy”. I myself have been in touch with, and sometimes interviewed by, and got publicity from, a range of tourism sources, including A Place in the Sun, several major online private letting websites, and the British print and radio-television media. To be clear on the issue of residential properties, since they and their owners are not affected directly by “tourism” legislation, the association has no agenda of any sort in their respect.None the less, those who have been fined for letting do come within the association’s remit because they are then directly affected. There are also many cases of independent residential villas where there is no technical or legislative reason why a tourist licence should not be granted, and so we have lobbied for relaxation of the rules in their respect too.
Q: Can you explain the legality of “family and friends” as it appears to be unclear in letting law.
A: It’s not unclear, as it happens, because the term is used nowhere in any of the tourism laws. It is a lay person’s shorthand, effectively, for the fact that owners are allowed full private use of their properties, incuding having personal guests.
Q: I’ve just googled my NIE number with BOC added after and the google search found nothing. Does this mean that i am not on any list and therefore have not been fined?
A: No, I’m afraid it doesn’t mean you’re not fined, it means your name hasn’t been published. This could mean that a letter has been delivered, or is in the post, or that it will be published tomorrow. The fact that you haven’t found your name is cause for great relief … but you need to keep watching … and not to advertise.
Q: If an owner is fined would the Tourismo deliver the letter of notification to the property in question in the Canaries or to your home address in the UK?
A: They will post letters to whichever address they have for you. If you’re on a complex, it will be the address that your community’s administrators hold for you, and yes, if that is a UK address then it will be sent there.
Q: As holidaymakers, who can we legally book apartments from?
A: You can legally book with whomever you like, whether it’s a touristic or residential property! It’s the owners of the property who are restricted by law. If you wanted, though, to be sure you were booking an apartment that the owner is legally entitled to let for holidays, then your best bet is to look at THIS and/orTHIS (I’ve tried setting them to English for you): these are touristically licensed properties and the sites are official ones.
Q: If holiday makers are in an illegally let apartment on a residential complex, do they have legal rights to access and use communal areas and property?
A: Yes, they are “resident” on the complex for the duration of their stay, regardless of whether the owner is doing anything wrong. Occupants of an apartment are doing nothing wrong and have full access to and use of all complex amenities.
Q: As renting to holiday-makers is illegal, would the communal insurance be invalid as it would only cover residents and not tourists in the event of an accident so any claims made by holidaymakers would then fall onto the Community of Owners to pay personally?
A: There could be real problems with insurance being invalid – even when insurance companies explicitly say there will be no problem with illegal letting – though whether any subsequent claim would fall on the comunidad or the individual owner is not clear.
Q: What is the situation on agents who allow owners to take their own bookings. Some owners advertise but bookings go to the agent direct; others advertise and take the bookings themselves, but then put the bookings through the agent.
A: First, to get it out of the way, if owners take bookings themselves and do not involve the agent then they are breach of existing laws. With regard to the two examples you give, though, clearly the apartment should first be registered with the sole agent. The management contract between that agent and the owner should include a clause concerning the fact that adverts are being placed by owners but that bookings go to the agency direct. In addition, the advert itself should state very clearly that the rental is to be done through the registered agent. Even so, Alotca lawyers say that the issue of adverts placed by owners “is still not advisable and is risky.” To be totally safe, everything should go through the sole agent, from initial registration to management contract to advert and booking.
Q: If i sell half way through appealing my fine what will happen? Presumably it cant be attached to the property until its finalised—-but will it be attached to me?
A: Fines are levied on the owner, not the property. If the fine is unpaid, it will be registered against the property. If the property has changed hands, however, then the fine will remain as levied against the person, and cannot be registered against the property. This means that if you agree a sale but the fine is then registered against the property before you notarize it, this will become clear at the point of signing, at the very latest: I would think it unlikely that any buyer would proceed before the charge were lifted, which would involve payment of fine plus interest plus legal admin/registry costs. If, however, the fine is still ongoing and has NOT been registered against the property at the point of notarizing the sale, then it stays lodged against the person and never becomes charged against the property. The Government says that it intends to use existing reciprocal arrangements with the British Inland Revenue to pursue cases against individuals in this situation. Spain has reciprocal arrangements with the tax authorities in a long list of countries – see HERE.
Q: To whom and where do I report an illegal apartment letting owner.
A: A community President cannot be seen to be promoting it, and if s/he knows about it and does nothing, then there could be issues there – technically s/he could be denounced, but this would require a certain amount of evidence, and the illegal letting would almost certainly need to be widespread before s/he would be held culpable. Much more effective would be to report it to the administrators of your community: they should write to the owner who is letting illegally and instruct them to stop or legal action will be taken, taking the form either of private legal action or a denuncia to the tourism authorities. Depending on your reception when you report it to the administrators you also have the additional option of requiring them to add it to the next general meeting’s agenda for discussion by all the owners. If your AGM is not for some time, you could also require an Extraordinary General Meeting (EGM) to be convened immediately: this would require 25% of owner voting power to instruct the administrator. If you get absolutely nowhere with the President, administrators or even community, then you have the option to denounce the illegal letting yourself direct to Turismo. Note that when you issue a personal denuncia, your details are included for all to see. To do this, you should contact:
Consejeria de Turismo
Dirección General de Ordenación y Promoción Turística
Servicios de Acción Turística, Inspección y Sanciones e Infraestructura Turística
Edif. Duque de Santa Elena – Planta 1ª
C/ La Marina, 19-21
38071 Santa Cruz de Tenerife
Telf: 0034 922 299 330 (if that doesn’t work, try 0034 922 473 500)
Fax: 0034 922 290 958
Q: Where would a buyer stand if they bought a property on a touristic site which was registered with the sole agent but they didn’t want to rent it out ??
A: As things stand under current legislation, they visit the agent and remove the property from his list.
Q: When the inspectors visit a property, what sort of questions might they ask of holidaymakers?
A: As far as we know, they are just asking general questions such as whether the “guest” is satisfied with the tourist services provided and such like. It is the provision of “tourist services”, of course, that specifically proves someone is letting commercially, and breaking tourism legislation.
How do we find out if we are on a particular Government list for a fine for illegal lettings please.
We always thought that if we paid our annual property tax on both our private and family apartments that covered any tax liability.
Regards
John and Margaret Heald.
It has nothing to do with tax. This is a matter of tourism quality control by the Government. You may not let, commercially for holiday purposes, any residential property, and if your property is touristic (ie has a touristic licence) then you may only let it through the onsite registered agent.
If you have been fined, a letter will have been sent to you. You have 15 days from receipt of this letter to appeal so contacting a lawyer is urgent. If for some reason the letter cannot be delivered, it will be returned to the Government and they will publish its (and your) details in the BOC, a daily Government publication (link is HERE). If you have not received a letter but think you might have been fined, you need to check if you have appeared in the BOC: there is a search box top left on the page I’ve linked to – enter your NIE in there (and then change the year and try again).
If we type our NIE number into the search box on BOC page will that not alert the authorities to the fact that we have been letting and possible lead to a fine.
Don’t think so, though can’t guarantee it. It works so poorly that I doubt they have the capacity to see who’s been checking. And in any case, of course, the BOC is not just for “illegal letting” fines: someone could be checking for something else entirely.
That is something worth noting, really. The search facility on the site is utter rubbish, apart from the fact that one needs to search individual years separately. Far far better just to google a NIE and add “BOC”. That will bring up anything that’s there.
Only this morning I checked a confirmed NIE in that search box. Nothing found. Google found the fine, though.
Janet.
I have just tried to google my NIE number followed by “BOC” and google tried to change BOC to BOX. Can you give an example of exactly how I should enter my NIE in the Google search box. Thank you.
Format is “x1234567y BOC”, with no spaces in the NIE, no hyphens, etc., and just BOC in capitals.
‘Just to be clear for those who mightn’t be fully up to speed, individual private renting isn’t on Alotca’s agenda’ – has Janet said recently.
I’d like to ask…
what is on Alotca’s agenda?
Thank you very much in advance, Janet.
Please read the following links:
Public meeting and “illegal letting” lobbying association announcement
Press release for Spanish media introducing illegal letting lobbying association – ALOTCA
Public meeting ALOTCA – minutes
Family and friends – can anyone explain the legality of this as it appears to be unclear in letting law.
If on a touristic complex I allow family and friends (without same family name) to stay without charging them (they may or may contribute something towards cleaning/fees) and inspectors call what is the situation? Should they have gone through exploitation company / reception? The inspectors will ask to see passports but if it is friends will they try and impose a fine? even if live in same area in UK or known for 20years? As an owner of an apartment on a touristic complex I would thing I should be able to let anyone I like stay there but apparently not? What is best response to inspectors or is it a case of don’t let anyone stay? As the owner I should be able to let anyone I wish stay!
Hi David, I’ve explained this many times in my posts over the last year and a half. The long and short of it is that the term is used nowhere in any of the tourism laws. It is a lay person’s shorthand, effectively, for the fact that owners are allowed full private use of their properties, incuding having personal guests.
As suggested i’ve just googled my NIE number with BOC added after and the google search found nothing. Does this mean that i am not on any list and therefore have not been fined?
Also, and excuse my ignorance, if an owner is fined would the Tourismo deliver the letter of notification to the property in question in the Canaries or to your home address in the UK?
Thanks in advance,
Barry.
No, I’m afraid it doesn’t mean you’re not fined, it means your name hasn’t been published. This could mean that a letter has been delivered, or is in the post, or that it will be published tomorrow. The fact that you haven’t found your name is cause for great relief … but you need to keep watching … and not to advertise …
They will post letters to whichever address they have for you. If you’re on a complex, it will be the address that your community’s administrators hold for you, and yes, if that is a UK address then it will be sent there.
‘owners are allowed full private use of their properties, incuding having personal guests.’
Thanks Janet, this is the part I’m getting conflicting reports on – from being told its ok as long as you haven’t accepted payment to friends and non-immediate family are not ok and you will still be fined. The inspectors want proof and the onus is on you to prove they are family / friends!!! Does anyone have any experience / evidence of inspectors calling and challenging friends? What do you suggest response to inspectors is? Or is there anything in the law that covers this?
Imagine you have a car in the UK. You would lend it to a friend, and you’d consider it just the same as if you were driving it yourself. You wouldn’t lend it to me, though, would you? Your friend’s use, though, would be private to you because it would be a personal friend.
It’s the same with your apartment here. If the inspectors call when your friends are there they say they are your personal friends, and if asked if they have paid they say no because it’s a private loan by a friend. It is your own usage whether you are there with your friends or not. Bear in mind that inspectors can return to a property, and if they find “friends” there week after week it would not be plausible – even if it were actually genuine!
What is not allowed is for you to have people there whose presence cannot be defined as your own personal use. These people generally pay, too, and generally they are not people you would share the apartment with! It’s not only about money – it’s the “commercial exploitation”, making your property available to the public. That generally means a payment, of course, but it doesn’t actually need to involve one.
Does this help clarify?
Thanks Janet, I think so. So it’s ok the first or second time inspectors call, nothing they can do, but they may well keep coming back each week and if find different people there without same family name or close connection they will pursue?
Glad I haven’t got too many friends
So I understand it, I’m afraid.
Hi, have you got the link to the website list which shows who has been fined. Just want to see if I am on it.
Thanks.
Steve
Yes, it’s HERE. Really, though, all you need to do is google your NIE (format as in x1234567y) with “BOC”. That’ll bring up any entry. The search facility on the BOC is not that brilliant, and you can only search a year at a time anyway.
Please bear in mind though that it’s not an exhaustive list. It’s only those owners to whom letters were unable to be delivered.
I have been sorting out the two Q&A pages, and am moving to this page questions about illegal letting that were originally posted on the Being Legal in Tenerife page. Please note that one or two (very few) comments have been removed altogether – this is just to keep this post straightforward to read as a question and answer one, rather than a discussion page.
claire asked on 13 July 2012 at 2:05 pm:
Janet: it is a very grey area, really, because strictly speaking, what they’re doing is not allowed with the law as it currently is. They are the sole agent and should be taking the bookings. I wonder what would happen if an individual were to be fined for taking a booking personally on such a complex – since advertising is being done “privately”, then technically the owners could be fined. And yet their action would be in compliance with the sole agent’s regime on that particular complex. As I say, I wonder what would happen when an appeal against such a fine was submitted – at the moment, I don’t know because I’m not aware of one. But my understanding of the law is that such agents are giving owners a potential problem by allowing them to advertise and take bookings freely when it is the agent’s legal responsibility.
Linda Connolly asked on 19 July 2012 at 12:10 pm:
Janet : Hi Linda, well technically, you can legally book with whomever you like, whether it’s a touristic or residential property! It’s the owners of the property who are restricted by law.
If you wanted, though, to be sure you were booking an apartment that the owner is legally entitled to let for holidays, then your best bet is to look at THIS and/or THIS (I’ve tried setting them to English for you): these are touristically licensed properties and the sites are official ones.
Ken Shade asked on 19 July 2012 at 1:36 pm
Janet: Hi Ken, yes there are a couple. Could you just see the reply I made above a few moments ago to Linda? The links are there.
For what it’s worth, though, your friends wouldn’t be doing anything wrong, not even if they weren’t your friends at all and you were holiday letting. It is you who could be fined if you were doing so, but they would not be in any sort of trouble at all. The law entitles you to full private use of your own property, though, including having personal guests (and the lawyers are adamant that you do not need to be present in person to have personal guests).
Linda Connolly 19 July 2012 at 2:16 pm says:
andrew 19 July 2012 at 3:49 pm says:
Ken Shade 19 July 2012 at 9:13 pm says:
Hi Janet,
If holiday makers are in an illegally let apartment on a residential complex, do they have legal rights to access and use communal areas and property?
Yes. Absolutely. They are “resident” on the complex for the duration of their stay, regardless of whether the owner is doing anything wrong. Occupants of an apartment are doing nothing wrong and have full access to and use of all complex amenities. More specifically, there is nothing in the law that I am aware of to prevent them having full access.
The problem that has been pointed out on our urbanisation is that, as renting to holiday-makers is illegal, the communal insurance would be invalid as it would only cover residents and not tourists in the event of an accident so any claims made by holidaymakers would then fall onto the Community of Owners to pay personally
The lawyers say that there are real problems with insurance being invalid – even when insurance companies explicitly say there will be no problem with illegal letting – though whether any subsequent claim would fall on the comunidad or the individual owner is not clear.
In a comment on 13 July 2012, Claire asked:
I replied:
I have now been asked to clarify the situation on agents who allow owners to take their own bookings. There seem to me to be two categories:
1. where the owners advertise but bookings go to the agent direct;
2. where owners advertise and take the bookings themselves, but then put the bookings through the agent.
(Evidently if owners take bookings themselves and do not involve the agent then they are breach of existing laws).
I now have legal opinion on this question, and it is:
1. that the management contract should include a clause concerning the fact that adverts are being placed by owners but that bookings go to the agency direct,
2. that the advert should state very clearly that the rental is done through the registered agent;
3. that the apartment is registered with that agent.
The legal opinion concludes with “But it is still not advisable and is risky.”
I stress that although this agrees with what I posted above, this is now not my own opinion but that of a lawyer, who is looking at this from the perspective of the likelihood of a fine being imposed by the Canarian Government’s tourism department, and of a defence in Court should such a fine be imposed. I hope this clarifies the situation.
Janet – thank you for your comments. I have been offline for a while so finally catching up. We dont actually advertise our apartment anywhere.
Apart from genuine family and friends we have a handful of people who have used the apartment with the previous owners and want to continue to rent it. However we are in the odd situation where the agent on site only seems interested in the bookings taken by themselves, even though we would quite happily pay them a % for our own bookings. I think part of the problem is that we dont want to let our apartment to just every Tom, Dick and Harry!. We would much rather it was people we know and trust. However I understand that they dont make much money from this but it probably involves a lot of admin.
Your other comment was interesting
Bear in mind that inspectors can return to a property, and if they find “friends” there week after week it would not be plausible – even if it were actually genuine!
We have had genuine close friends and family staying in our apartment most of this year, with my parents staying for most of the winter. We would rather they were using it than sittiing empty.
For peace of mind we would rather the agent knew about all of our guests, however I have asked twice now to clarify the situation and they are not interested in them, so it’s quite frustrating.
Maybe when the Touristic letting laws are changed it will force agents into complying fully with the laws requirements, especially if the % of apartments they require on their books increases.
Hi Claire, as I say in the reply immediately above your comment, all bookings must, according to the law as it currently stands, go direct to a sole agent. This means that you’re not really in an “odd situation” – your agent is acting in accordance with his legal responsibility and is therefore required only to be interested in “the bookings taken by themselves”.
As I say in my post above yours, and I’ve confirmed this with legal opinion, you should have a management contract with this agent which should include a clause to the effect that bookings go to the agency direct even though the holidaymakers might be found by you yourself; any adverts you do actually place should state very clearly that the booking goes direct to the registered agent; and your apartment must be registered with him. Anything else is not just risky, it’s illegal. You are not safe in the situation you describe.
Your agent might not be prepared to engage with you while he is, perhaps, aware that you have guests about which he knows nothing. He has to protect himself too, I’m afraid, and although I understand your desire not to let to the public generally, you don’t have that option. You either let through the agent, or you don’t let at all. That’s how the law is, at least as it currently stands.
As far as I can see Claire has done everything she can to engage with the agent on her complex. If he’s not interested then stuff him! I know she is still acting “outside of the law” by allowing genuine family/friends stay rather than have the place empty but we do exactly the same and for the same reasons. Its all well and good saying that all bookings must go through the agent but if they don’t want to know then that isn’t the owners fault.
We have heard that on our complex the sole agent isn’t interested at all in taking on any more apartments and we don’t even know if he has enough of a share on the complex to be a legal agent anyway! The whole situation is getting ridiculous. Owners are prepared to “go legal” yet the useless agents cannot be bothered to co-operate!
And Janet I know what we are still doing is illegal before you remind me and that non co-operation from agents isn’t a justified reason to carry on letting but can you see just how frustrating this is for owners?
Yes, absolutely. And I would be tearing my hair out myself in the same shoes.
I know it’s not the owner’s fault, Craig, but my concern is for owners to avoid fines, and the advice I give is directed totally to that end. Of course people will bend rules, and work completely outside them at times, but they need to know the risk they’re taking.
The problem, I suspect, is that in the event of a fine, a defence of “the agent wasn’t interested” won’t cut any weight at all with Turismo. Whether it would with the Courts is a different matter, but who wants to have to go there to find out?!
I just hope the new legislation improves on this ridiculous situation.
Dear Janet,
I have lived out here in Tenerife for the past 12 years, my home is an apartment on a Touristic complex and I have spent thousands on the property. How do you think that the changes in the letting laws in December of this year will effect me?
I also hear horrendous stories about the amount of money that these Sole Agents pay on lease backs, could,nt a survey be done and passed on to the press?
Best Wishes Michael
Hi Michael, I’m afraid that until we see the law, or at least a draft of it, we’re just not in a position to know how it will affect you as a resident on a touristic complex, if at all.
As far as sole agents are concerned, there are a few good ones, but the majority do get a bad press.
The press have reported on this, notably the Mail on Sunday and A Place in the Sun, but the Government is pursuing its path regardless of any publicity.
A friend of mine has just told me he has received a notification to collect a letter from the post office and he is nervous as it’s closed until tomorrow morning. If it were a fine, who should exactly be the sender? Maybe ‘Consejería de Turismo’? I wonder if anyone who’s got one of these letters could report the exact words. Thank you very much in advance.
I’ve seen plenty of fines but no envelopes, I’m afraid, so I hope someone will post what it says on the cover. If he doesn’t collect it, and it is indeed a fine, then the details will at some point be published in the BOC, at which point he will have 15 days to submit an appeal. He simply must respond, though, otherwise the fine will stand.
I suppose the only way we can stay legal is to only allow family and friends to stay and pay the agent to do the cleaning and not take any other bookings ourselves. We are very lucky that we dont need bookings to pay a mortgage, that’s why our relatives stay free. However not sure the agent will be interested in just doing the cleaning and not taking money for bookings (I completely understand as there’s nothing in it for him).
So the only way round the situation is to start charging my relatives and friends and put the bookings through the agent, but make sure the apartment is booked through the year so I dont have any strangers in there!
Letting my friends and family stay in the apartment without going through the agent holds me open to claims that I am exploiting it touristically because it is full most of the year. As you have said “Bear in mind that inspectors can return to a property, and if they find “friends” there week after week it would not be plausible – even if it were actually genuine!
When we purchased our property we knew about the letting laws and this is why we decided to buy on a touristic complex not a residential, so that we could let our family and friends stay with no risk. It is very frustrating that we are trying to stay within the law but not being helped.
I am sure there are lots of agents that don’t want to take on more apartments simply because they cant fill the ones they already have. In my case if they couldn’t rent it out it would be fine by me!
my recorded letter for our fine was described as” gobierno de canarias”, on the postmans card in our apartment. I too realised that we did not ever get such a letter so thought that this was our fine. I was too late to get to the post office so our fine came through later on the bolutin.
I got my fine registered delivery in England and you will know it’s a fine as soon as you see the envelope.
Janet
Have any cases been to court yet? If not how far is that off?
I was on appeal but had the 1st one rejected, so I’m on appeal 2 now 5 months or so in.
They’re preparing the first cases right now. As far as I’m aware, they have two months from the end of the three months after the Alzada (final appeal to the Government), so will be any day now.
Hopefully with yours they’ll get to 6 months before the Alzada needs to go in!
Andrew,
Did you get your fine reduced on appeal? There seems to be an automatic ‘block’ reduction on most fines which seems to indicate they are not looking at individual circumstances – let’s hope the Courts do!
I’ve been asked to post the following question on behalf of someone who wishes to remain anonymous:
The answer is that fines are levied on the owner, not the property. If the fine is unpaid, it will be registered against the property. If the property has changed hands, however, then the fine will remain as levied against the person, and cannot be registered against the property. This means that if you agree a sale but the fine is then registered against the property before you notarize it, this will become clear at the point of signing, at the very latest: I would think it unlikely that any buyer would proceed before the charge were lifted, which would involve payment of fine plus interest plus legal admin/registry costs.
If, however, the fine is still ongoing and has NOT been registered against the property at the point of notarizing the sale, then it stays lodged against the person and never becomes charged against the property. The Government says that it intends to use existing reciprocal arrangements with the British Inland Revenue to pursue cases against individuals in this situation. Spain has reciprocal arrangements with the tax authorities in a long list of countries – see HERE.
Philip, our original fine was 21,500 euro, we have 2 apartments and the fines were for no sign for claim forms and no record book. After the first appeal tourismo reduced to 15,000 euro on grounds of our first offence. We are currently awaiting the final appeal result.For what its worth our apartments are on a dormant touristic complex, we bought touristic because we always wanted to rent out.
To the person hoping to sell before the fine is registered to the property, one person on our complex has done that. Hope they dont get chased in UK for the fine.
As I say above, until the fine is actually charged against the property, said property can be sold with no problem. The fine is on the individual and remains on the individual, and the Hacienda intends to chase in the UK via existing reciprocal arrangements with the Inland Revenue.
Have to agree with Andrew on this one HMRC, are not empowered to collect foreign fines, the title (Her Majesty’s Revenue and Customs) says it all really. So selling before it is levied against the property would appear to be a way out. But pity the buyer that would have to sort it out!
Buyer won’t have to sort it out Derek, because it won’t be a charge on the property if it’s sold before the fine is registered against it, and Turismo is adamant that the fine can be collected by reciprocal arrangement between the Hacienda and the IR. Who’d want to test it?!
Would be grateful if we could now wait for another question and avoid “discussion” on this page. Would appreciate it
Since late 2010, traffic fines can be collected via the courts in other EU countries and even Spanish community fees can be chased through UK courts ..
Dear Janet,firstly may i congratulate you and thank you for such a wonderfull informative website. My question to you may infuriate some people but there is a different tangent to this thread, to whom and where do i report an illegal apartment letting owner to. I own an apartment on a residential complex on the Amarilla Golf, the person above me rents his apartment on a very regular weekly basis with noisy renters arriving at all times quite often in the early hours dragging suitcases, banging doors and doing what can only be described as an excerpt from ‘Riverdance’ on the tiled floor directly above my bedroom. I have complained to the owner and to the president of the community but to no availe, the owner is arrogant and believes himself to be above the law. I am not a ‘killjoy’ so to speak but i have reached the end of endurance. Alice Cribben.
Hi Alice, and thank you for your kind comments about my website!
As far as reporting illegal letting is concerned, the President cannot be seen to be promoting it, and if s/he knows about it and does nothing, then there could be issues there – technically s/he could be denounced, but this would require a certain amount of evidence, and the illegal letting would almost certainly need to be widespread before s/he would be held culpable.
Much more effective would be to report it to the administrators of your community: they should write to the owner who is letting illegally and instruct them to stop or legal action will be taken, taking the form either of private legal action or a denuncia to the tourism authorities. Depending on your reception when you report it to the administrators you also have the additional option of requiring them to add it to the next general meeting’s agenda for discussion by all the owners. If your AGM is not for some time, you could also require an Extraordinary General Meeting (EGM) to be convened immediately: this would require 25% of owner voting power to instruct the administrator.
If you get absolutely nowhere with the President, administrators or even community, then you have the option to denounce the illegal letting yourself direct to Turismo. Note that when you issue a personal denuncia, your details are included for all to see. To do this, you should contact:
Consejeria de Turismo
Dirección General de Ordenación y Promoción Turística
Servicios de Acción Turística, Inspección y Sanciones e Infraestructura Turística
Edif. Duque de Santa Elena – Planta 1ª
C/ La Marina, 19-21
38071 Santa Cruz de Tenerife
Telf: 0034 922 299 330 (if that doesn’t work, try 0034 922 473 500)
Fax: 0034 922 290 958
I hope this helps. Thank you for raising the question because it allows me to answer it in this Q&A section and I can now refer to it whenever I get enquiries about this … and you are far from alone in contacting me about it.
I see the British Embassy has finally caught up with news , over a year later!
http://ukinspain.fco.gov.uk/en/news/?view=News&id=796729682
Nice to know they are there to help and advise us !
I’ve posted the full press release HERE. Better late than never!!
I was also offline for a while and want to add something to Claire’s comment about the agent.
We have an agent who only wants to rent out the apartments in our building if the owner grants him the 12 months and he is giving back 1 month that the owner can use himselve. Is this legal? We are retired and want to come when we want.
Yes, I’m afraid as long as the registered agent is operating legally, he can effectively run whatever system he pleases.
Dear Janet,
I am an owner of an apartment on a residential complex in Lanzarote.
Many of my fellow owners,and My wife and I, feel that we have no option but to denounce commercial illegal letting to Turismo. We would be very thankfull if you would advise the procedure for this.
Do we write to the address you provided above?
Do we need to engage a lawyer?
What personal information will they require?
What documentation will they require?
Thanking you in advance.
If you have a look up-page at my reply of 5 August to Alice Cribben you’ll see the details you need for a denuncia. I don’t know what they’ll actually need, but I would think that a simple statement will suffice, at least in the first instance. As I say in my reply to Alice, please do be aware that you can’t make such a denuncia anonymously.
Is it legal to occupy an abandoned house or farm to live and grow crops if one fixes it and takes care of it?
No … it will belong to someone, and you would need to have permission from whoever was the registered owner. With older abandoned properties it’s not always easy to find out but it can be done. When it comes to fixing it up, too, it’s not as easy as it should be. You would think it would benefit everyone for renovation work to be carried out but you’ll need at least a licence from the townhall, with a tax to pay …. and of course that assumes the owner has given permission too.
With regard to the new law, you can read on the proposed text the following article:
Se incorporan dos apartados, el 1.bis), y el 12, al artículo 75, quedando redactado el citado artículo como sigue:
“Artículo 75.- Infracciones muy graves.
Se consideran infracciones muy graves a la disciplina turística:
12. El incumplimiento del deber de atenerse al uso establecido por el planeamiento, destinando un establecimiento
turístico de alojamiento a usos residenciales.”
This means it will be considered as the most serious offence (fines between 30,001 and 300,000 euros) to use a tourist apartment for residential purposes. It’s quite clear. It is not a question of interpretation. It is just literal translation.
My question here, Janet, is…
How can you expect people to be optimistic about this new law?
I don’t think I ever said anyone should be “optimistic”! The fact is that this law is now wading through treacle in Parliament, and has until May to be clarified, and as a lawyer you’ll be aware that there will need to be detailed definitions in a reglamento as well before we can arrive at any firm interpretation. We shall have to wait until the new year, and perhaps even until May now before we know for sure what is intended. But yes, that’s how I read it too: unless things change between now and May, illegal letting will be deemed “very serious” and the fines will go up to the maximum grade. That is an horrendous prospect, and one that I admit I’ve sat on to avoid causing panic.
With regards to the comments from “Efren” and the response from Janet 19 December 2012. I think there are many touristic apartment owners who have concerns and especially those who use their apartment for residential purposes. Is there any organization that is actively representing those residential owners when dealing with the Canary Government?
Not that I’m aware of, no, but of course they’re supported by the law itself.
Janet… Is there a relaxation in the new law of the rule of 100% owners needed to vote in favour of changing a complex from residential to touristic to majority?
I’ve not seen any reference to this at present, so I suspect it will be in the reglamento … which no-one will see until the bill is passed. Sorry …
as it happens, I doubt it, for what that’s worth.
Depending on what they mean by Usos residenciales this could have major implications for all involved .
I struggle to see how they can stop an owner living in their own apartment, I’m sure there are human rights about that?
I see sense in them stopping owners long letting their properties – the other interpretation seems a tad mental and will cause major problems on complexes that are a mix of residential and tourist.
Fun times ahead!
not just human rights, but I’m told constitutional rights too. Agree with you, and on the fun times ahead too!
I hope this is just for people long letting in tourist sites and not living jn their own property, although I can see guy they’d want to do it (more tourists in tourist complexes) it would cause a lot of ill feeling on complexes that are not 100% tourist lets and have some residents.
I also wonder how well the authorities will be able to police “illegal residing” when they struggle to stop illegal letting.
Agreed. This is all over the shop, and legal opinion is that firstly, they couldn’t do it if they wanted to, and secondly, that it can’t be what they mean. As such, I’m strongly advised, we have to wait not just for the actual final form of the law, but its reglamento too. There is no concept that people are actually worried about this and need certainty!
With regards to the question on policing illegal residing within touristic complexes. I think if this was to become an offence, it would be very easy to police as I assume the sole agent would be expected to report such illegal activities.
Unless they make the whole thing a lot clearer and simpler it’s going to be a complete nightmare to try and interpret or implement any of the parts that relate to tourist or ex-tourist complexes. There are simply far too many variables at the moment. As well as trying to enforce modernisation and improvement, they are seeking to control the usage of private property. Not too difficult if you have a hotel or apartment complex with a single owner. But when you have say 130 apartments, with 130 different owners, it’s an entirely different thing. Especially when the complex is currently used for everything ie owner residential, holiday homes, long-term letting and yes a little illegal holiday letting too. And even if we decided on our complex that we wanted to pay thousands of pounds each to upgrade the complex to be able to regain our tourist licence, we would not be able to fill 130 apartments with tourists – we struggle to rent out about 20 to tourists at the moment. We would not be able to fill even 50 percent of the apartments with tourists, never mind the newly required 70 percent. It is simply not an economically viable business proposition in the first place. Any legislation needs to take account of market conditions, it cannot simply ignore them and hope for the best.
here’s a thought though…….. we know how hard it is to prove that someone is letting their apartment illegally on a tourist complex – if this law was passed it would be a lot easier to prove that someone IS NOT letting legally………..
Ref comments from John Parkes.
I have often wondered if the issue of illegal residing is a direct result of the problems with illegal rentals. Did the protests of those involved in illegal rentals trigger the new proposed tourstic laws, that are worded in such a manner that appears to make it an offence if a tourist apartment is being used for residential purposes. This of course makes the use of such complexes very easy to police, prove guilt, apply substantial fines and tax accordingly.
And with that, I’d appreciate it if we could now leave this Q&A page for clearcut questions on the issue, and wait for some clarity from Parliament about the new law some time in the first half of 2013?
One last point to Petra; you could easily let all of the apartments for 80% or more of the year right now, you just need the right people and the right marketting. Youre right that the owners will always struggle to fill their own all the time.
Hi Janet,
Petra makes reference to 70% in her post of 20/12/2012. Is she referring to the sole agency requirement on a complex? Has there been a change from the 50%+1 ?
we don’t know what the new requirement will be yet pablo, and the 70% was mooted as a possibility in the new legislation, but it’s mired in Parliament, so heaven knows what the final figure will be.
The 70% was the suggested reduction from the 100% currently needed, the 50%+1 for existing would remain.
suggested changes only………
I think this is one of the areas of the draft that is most open to confusion and misinterpretation, so they are trying to sort it out. There was talk of existing licensed tourist complexes needing 50+1 owners signed up with the sole agent, but for new licenses (ie a dormant touristic re-applying) needing 70 percent of properties signed up. I guess we will just have to wait and see what ends up in the final version and hope it is at least more definitive and clearly worded.
It is important that all tourist apartment owners are kept upto date with the proposed new tourist laws. Does anyone know if they are being redrafted? and what changes or discussions are taking place by the Canary Government?
The new law is working its way through Parliament with a revised deadline of May 2013. So, we will have to wait a little longer for the final version. I am trying to keep an eye on any proposed changes to the existing draft, but there may not be much external discussion before May.
Thanks Petra. Ken, as I posted on 19 December above, “this law is now wading through treacle in Parliament, and has until May to be clarified … . We shall have to wait until the new year, and perhaps even until May now before we know for sure what is intended.”
Thanks Janet & Petra, surely the Canary Government are discussing the issues surrounding the new proposed touristic laws and perhaps some of the meetings are minuted, if so is it possible to find out what they are thinking of doing? do they believe the wording of the new laws are acceptable to touristic apartment owners, in particular those of us who do not rent them out?
It’s in Parliament, so it’s minuted, but it changes day by day. At the moment they’re talking about the possibility of widening the scope for hotel licences to allow 4 as well as 5 star hotels.
As soon as there is anything substantive to report I’ll post on it, but I think it would be counter-productive, and misleading, to update frequently with the latest discussions because people would think they were “plans” rather than just “talk”.
Yeah, I picked that up Janet, but like you say, it doesn’t directly affect us as such, so hadn’t posted it. Another thing I read showed there were strong arguments for more flexibility between islands, giving each island greater responsibility for how they manage their own touristic development. Recognition that each island is different makes more sense than the one size fits all nature of the existing draft. It seems though that the views of the humble apartment owner on a tourist, or ex-tourist complex are not being sought. Only the opinions of hoteliers and potential investors are heard. Having said that, some of the most incomprehensible parts of the draft are those relating to apartment complexes and if they want to stand any hope of being able to implement these, they need to get stuck in and rewrite it. Like you Ken, I do not rent out, but our complex lost its tourist licence in 2004.
Where would a buyer stand if they bought a property on a touristic site which was registered with the sole agent but they didn’t want to rent it out ??
As things stand at present, they visit the agent and remove the property from his list. As things will stand under the new law, who knows at this moment!
Hello Janet,
Like many, I am an owner that has been fined for letting our apartment in Tenerife, today as we are holidaying here we have receiced the post which informs us that on top of the fine we are now going to be charged an extra 20% interest on the fine because we have not paid it.
We took your advice and in 2010 employed Jose Escobedo to fight this unjust action in the courts.
Are they allowed to do this when there actions are being questioned in court
Yes, I’m afraid so, though I’m shocked at the 20% rate! José has submitted an application to the Courts to suspend the requirement to pay the fine (and therefore the requirement to pay interest on it while unpaid) while the appeal is ongoing, but he is still waiting for a judgement on that. This is a choice that has been given to all José’s clients: they could either pay up, or not pay and request the suspension, but with no guarantee, evidently, that the Courts would grant the request.
There’s a thoughtful and thought-provoking article today in CanariasAhora by Román Rodriguez, who was President of the Canaries between 1999 and 2003, the President before Adán Martín, who himself was President before the current President, Paulino Rivero. It was under Sr Rodriguez that the touristic moratorium was originally introduced in 2001. I don’t have time to translate the whole thing but have just run it through Google Translate to see how it reads and I think it will be comprehensible. HERE is the article.
I will shortly be attending an AGM on behalf of a friend whose apartment is in a touristic complex. It may be that the complex owner has allowed his touristic licence to lapse although not entirely sure on this. I believe that at the moment the owner has to have 50%+1 to retain their sole agency rights. Would this still be the case is the licence has lapsed? From previous reports it was mooted that the 50%+1 could increase to 70%. Should this happen and the complex owner doesn’t have the 70% what, if anything, do you think could happen?
As far as I’m aware, if the licence has lapsed then the community needs 100% agreement to regain the licence. The best person to advise on this, however, will be a sole agent and I know some read this site so I hope they’ll clarify. The 70% proposal is just that: until the new law is passed we don’t know what the situation will be, but whatever it is, a community will need to achieve the requirement or will be unable to acquire a touristic licence.
Dear Janet, We purchase a small finca nearly 3 years ago, it is in a village location and not on or near any complexes, just the countryside!!
I began letting it out immediately, via a couple of UK sites. Then after reading all about the problems surrounding touristic lettings on complexes, I enquired whether I too could be fined, my solicitor told me to stop advertising and letting immediately. As I have what I think is termed a “Casa Rural” I am sure I could qualify for a touristic liscence after some alterations, however, this is not what I want to do. Is there any chance of rural properties being allowed to be rented out, as certainly in my local area it is of help to the local economy, as my guests used to go to local restaurants and supermarkets, etc.
Liz
There are quite clear conditions for casas rurales licences, as for casas emblematicas, and those licences can still be applied for. You say this is not what you want to do, however, and so I understand that you want to do simple holiday lets. You can’t, I’m afraid, and there is no chance of the new law allowing you to do so. You have a residential property. Your options are not to let; to do long lets; or to apply for a casa rural licence if your property qualifies.
Hi Janet ( brilliant website )
We are owners on a tourist run complex in Los Cristanos as i understand
the management company operating on site have to have 50% + 1 of the total community to operate legally.
My question is over the years,several properties have been sold and new owners my not have registered with the management company on site.
How is it possible to confirm whether the management company does hold the percentage required.
I do rent through them, but find them very difficult to deal with when there is no fair competition.
Many Thanks Janet
Hi Stuart and thank you! The genuine sole agent will have a certificate on display in an on-site office, together with signs and papers for anyone to complain who needs to. The official places are not always completely up to date with what is still an active agent, but the agent him/herself must have the official paperwork in an office open to the public. Even then it’s not possible to be 100% certain that they have the requisite numbers, but until a new agent takes over, or the agency itself closes, it will probably continue to operate … I know of several who do so when they are technically under the numbers required. It’s not entirely satisfactory, I grant you, and it’s possibly something the new law will tighten up on.
Ian has asked HERE, and I thought it should also be on this page of all pages!
The answer is:
First, have a read HERE for the definition of short- and long-term rental contracts. The whole point of a short-term contract, anything from 1 day to 1 year, is that it is for a specific purpose. That is under urban letting legislation. There is a link to the law on my links page.
The problem for those seeking to use this law as a way to get around the illegal letting situation, is that under tourism legislation, and so under different laws, the minimum period to avoid being accused of commercial tourist letting is 3 months, and you may not use “holidays” as the specific purpose.
Anyone using this as a “get-out”, will not get around the law, and is still at the same risk of being fined by Turismo.
We live on a residential complex and would welcome your advice re the following questions
Our administrator advises us that letting illegally on a residential complex has nothing whatsoever to do with the Committee ie president, Vice President or administrator. Reading your comments it seems there is an onus on them re illegal letting if they are aware of it.is this correct ?
What are the implications for the community regarding insurance and illegal letting? What insurance does the community have to have generally to protect itself in ‘public’ places and how is it interpreted with regards to those illegally letting?
Our administrator claims that by law only Spanish residents are legally allowed to rent out their apartments. Is this true?
Thank you for your help and such a wonderful reference website for us Brits abroad.
Yes, you are correct, and there are also serious potential insurance issues. Could you have a read HERE and HERE for a fuller explanation, to see if answers your questions?
Thank you for your kind comments!
Thank you for your rapid response! Could you please advise
What kind of insurance the community would have on a residential complex regarding residents? Ie would it be similar to public liability in England?
How would you advise we proceed when our administrator is adamant that there is no legal liability on the members of the committee regarding illegal letting?
On another matter, what obligation is there on members of the committee regarding a locale within the community which is indepentantly operated as a Canarian late night bar resulting in 8 years of sheer hell for all those apartments subjected to the noise, all night opening (literally), abuse towards residents, erecting of bouncy castles on a public plaza adjoining the community, intimidation in the form of denunciation which caused one couple to have to pay a lawyer to go to court for the case to be thrown out by the judge, verbal abuse and foul language. So far despite numerous denunciation by residents no action has been taken. We understand that whilst the police are sympathetic and tired of being called out to problems with this bar, the local mayor is supportive of the bar. Indeed this bar was in a neighbouring council and closed down very early on in its life for just such behavior. At present our community have instructed a lawyer to file papers with the court taking the ayutamiento to court for not dealing with these denunciation, but we are advised the time scale could be two years at least. Your comments would be greatly appreciated regarding our rights to a quality of life, devaluation of our property, disregard for community rules, flouting of bar license in respect of no extraction, no cooking license yet cooking regularly performed, lack of sound insulation. Sorry to bombard you, our AGM IS nigh and answers would help us to formulate a plan of action.
OK, in order …
the insurance should be public liability insurance.
The administrator is right about the committee’s liability because the committee as such has no status in law. The officers of the community who could be in trouble, however, are the president, and the administrators themselves. I have known a fine imposed on an administrator for blatant disregard of commercial letting on a residential complex, but I don’t know the detail, or I’ve forgotten it.
I think that with regard to the bar, you have done everything you could possibly do and I’m afraid will now just have to wait for the Courts.
To reiterate, a committee has no legal status. The only officers of any community with which the law is concerned are the president and administrator (though presidents can, in law, delegate to a vice president under certain circumstances).
Janet,
I am quite interested in your response to the 29/ 1994 LAU law on Contrato de Arrendamiento Temporada since a solicitor to our President has been peddling such an amended contract to be used for holiday letting to some of our community as a route around illegal letting laws and has indicated he would defend anyone using his contract .
The same prominent solicitor is a prominent member of Alotca -perhaps you could ask him if he agrees with your opinion ?
p.s. If you don´t wish to publish this comment, I will understand but I would be interested in your and his response .
Hello John
Can you please confirm if the apartments are touristic or residential? If touristic perhaps your sole agent may be able to give an opinion.
John, yes, I’m aware of this. In my opinion, the best that can be said for these contracts as an attempt to get around the tourism law is that they were designed for those who would not or could not stop advertising. Without any sort of contract at all the advertiser was wide open to a fine. At least with a contract there would be something to offer Turismo to try to blindside them. We doubt it will work, but it’s better than no protection at all … and they will serve as a useful test case if and when the advertising results in a fine. This is our joint view.
Ken – it doesn’t matter whether touristic or residential. Individual letting by private owners is illegal in either case.
While I’m here, I might say that I have two pieces of news, very significant news I believe, to post about shortly – I’m waiting for detailed confirmation before I say anything. I’m not trying to be coy, but this will (I understand) be important enough that it is imperative that it is correct and unambiguous before I post anything publicly.
Hello Janet
I assume these contracts (yet to be tested) are designed only for touristic apartments? Does it form a direct contract between the owner and the tourist or does it involve some form of intermediate agent?
They are designed for any apartment that should not be rented touristically! That is residential apartments in all cases, and tourist-licensed apartments where the owner wishes to rent him/herself rather than through the sole agent.
They are not recommended as a “solution”. The primary advice is to stop advertising immediately. Even then past cached adverts have been used as a basis for a fine, but there is at least a defence that advertising has been removed and stopped. There are those, though, plenty of them, who simply cannot stop advertising because to do so would result in a loss of rental income sufficient to cause a mortgage default … and repossession in any case. It’s a case of the devil and the deep blue sea. For these people, it’s a sticking plaster solution.
further info re the “civil code loophole”, even if an owner got all of their clients to sign a rental agreement this still wouldn’t cover you because of article 31 from 7/1995:
“Tourist accommodation is when a stay in an establishement is of liberal and temporary form, without the person accommodated changing their permanet residence.”
So if an instepctor knocked on the door of an apartment with people staying with a civil code contract and they were asked “is this your permanent residence?” – even if the people staying there are willing to lie to the inspectors the next question would be: “what is your NIE number?”.
All residents of Spain have to have an NIE number or they are not residents.
That’s just one way I can think of to squash that loop hole.
Well, the short-term contract doesn’t require change of address either, so in that respect it’s not a problem. Both tourist and short-term urban rentals acknowledge that the inhabitant has a different permanent address. The problem really is the lie that has to be told – i.e. the contract must say why the person is in the property, for reasons e.g. of temporary work placement, study, etc., and as you rightly say, must have NIEs of owners and tenant in any case. Even then, if one is prepared to lie, and one has a NIE, Turismo’s inspectors could still deem it a tourist let if it was for fewer than three months.
the short term contract doesn’t require a change of address but the 7/1995 law defines tourist use as “a stay in an establishment is of liberal and temporary form, without the person accommodated changing their permanent residence.”
So that means: even if you sign codigo civil contract, you’re a tourist if it’s not your permanent address. if oyu have no NIE it cannot be your permanent address.
I agree with your definition of tourism legislation, but under urban letting legislation, the short-term contract must contain a permanent address different to the one being rented short-term. That’s the point, I suppose, of it being short-term because if it were a permanent residence, then it should be a long-term contract.
Where the real problem lies, as you say, is the NIE, which the vast majority of tourists would not have. The other problem, of course, is that one of these short-term contracts for less than 3 months is in danger of being deemed a commercial tourist contract by Turismo, even if it were, say, a two-month work placement rental, though under such circumstances I would imagine enough evidence could be brought to Court in an appeal to overturn any fine.
Hello. My question is as it follows…
Apart from Tourismo fines for renting illegally, do you happen to know of anybody who has had to pay some extra money to ‘Agencia Tributaria’ as most owners haven’t paid taxes or declared their rent?
Thank you!
I would disagree that most owners have not paid their taxes. There is, obviously a percentage who avoid it, others who simply don’t know about it, but I would think the majority of non-residents, certainly a large proportion, are aware that as property owners they must submit an annual return, and that they will have to pay tax on rental income, and the notional rental income tax as well. Tax is such a separate issue, however, that it has not cropped up as an issue when an illegal letting fine has been imposed. There is no mechanism for it to do so, of course, because it’s separate.
Thank you Janet for your reply. By your answer I understand the vast majority of fined people have been paying tax on rental income in spite of the illegal nature of the activity. It sounds weird to me. I’ll give a couple of examples to explain why it seems strange to me. If I used my own vehicle as a taxi without permission or license, I would never declare my income to ‘Agencia Tributaria’. Doing so I would be confessing my irregular situation. If I were a drug dealer, would I declare my income at all? I assume it is a separate problem the one referring to tax, but there may be a connection between Tourismo and Agencia Tributaria so that when it has been proved that somebody has been letting illegaly, the authorities might check if that person has declared the profit he/she has been making through this illegal way.
You mistake the fact that most people, or at least very many, did not know that letting their properties to holidaymakers was an illegal activity. Moreover, those who knew were advised, often in the most official terms, that the law was all but defunct and that the authorities never took action … and that this had been the case for 15 years. This is why many people feel that the Government here has entrapped them.
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The same cannot be said for an illegal taxi driver or drug dealer. This was one of the main reasons why Alotca was formed, as an association to help those affected by a law that had never been enforced in any sort of concerted way, and under whose sudden clampdown people were being fined huge amounts of money for a first “offence”.
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On the tax issue, I am assured at a very high level that there is no such connection between the Hacienda and Turismo.
I think it is sad in this whole debate and discussion, that owners of apartments are mentioned in the same post as drug dealers. There seems to be a level of near demonization on various discussion sites that is hard to understand. I see even alotca and Jose Escobedo are now coming in for criticism from some quarters and I am scratching my head as to why. Alotca are not miracle workers but a group of genuine people who are taking a pragmatic and considered approach to a difficult situation.
I don’t see why Alotca is due any criticism. It normally comes from owners who are aggrieved that we aren’t campaigning for a free-for-all in residential apartment letting, something we’ve never said we would campaign for, something indeed that we have always said we would never campaign for … and something that, technically, is beyond any legal limits to Alotca as an association.
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Alotca is an association for those affected by this legislation. That’s what the initials stand for in Spanish. Residential apartment owners, in the strictest sense of the words, are not “affected” by this legislation. This legislation has nothing to do with them in a legal sense because they are not once mentioned by it. They are outside the law completely. None the less, those who have been fined for letting do come within the association’s remit because they are then directly affected.
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Alotca is here to work for those affected directly (in a legal sense) by the legislation, both existing and proposed. As far as fines are concerned, we have been working to create an atmosphere in which the fines as imposed are seen as monstrous. This has taken “diplomacy” rather than going in all guns blazing, which is what I know some would have had us do. Those who know their own social and political culture best say that this would be suicide. I have yielded to their own convictions and expertise.
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They (we) have had meeting after meeting in political and business circles throughout the Canaries, not just in Tenerife, including up to the very President of the Canaries, Paulino Rivero, himself. I myself have been in touch with, and sometimes interviewed by, and got publicity from, a range of tourism sources, including A Place in the Sun, several major online private letting websites, and the British print and radio-television media. I challenge anyone to say how we coud do more than this, and to be criticized is galling.
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On the legislation front, those meetings themselves were used to lobby for changes such as were humanly possible to persuade the government to envisage. By its nature, lobbying involves application of pressure, which by its own very nature, requires discretion and “diplomacy”.
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I’m sorry if some feel we’ve done nothing, or ceased our activities, or believe we’ve acted against them, or in violation of our principles. None of this is true. We are at this moment in a lull while the legislation is in parliament and, until we know what’s coming out the other end, are in some degree of limbo. None the less, we are still working on the legal side of things, and as I said the other day, hope to have something to say in the near future.
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Thanks to everyone who understands the logic and logistics of our situation, and who understands that none of us on the Alotca committee are doing this for direct self-interest, but in order to help those affected by this idiotic situation, and in turn to help the Canaries themselves.
Thanks for the comprehensive response Janet and carry on the good work in the manner that you have identified – if there is a way forward it will not be achieved in any other way than by diplomacy, as you rightly say.
Hello Janet
I think most reasonable minded people will agree with you. I have also noticed some comments on TF, they appear to be to be asking for more feedback from ALOTCA with a members website etc. There has actually been very little criticism of ALOTCA, I think any negative comments are more down to frustration and future uncertainty by some sole agents and tourist rental apartment owners.
Understood Ken, and thanks … and thanks Phillip too.
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There was some talk of a website, but I understand the issue was that two sites were needed, not just because there are two languages, but because there are two clear pathways for information … the British owner groups, and the Canarian business groups.
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The time and expense of setting such things up was felt better directed to the campaign, particularly given that the Canarian business groups have a direct route via the Chamber of Commerce for information through one of the lawyers on the Alotca committee, and there is my own site (which has confirmed traffic in the thousands daily) for information that I also tweet and post on FB for the British owner groups.
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I’ve also set up a page HERE (a link in the dropdown box in the Owning Property tab in the header) for everything I post on the subject (it’s extensive!), and I answer comments here as I’m doing now. If anyone thinks this is insufficient, it’s perfectly legal to set up an association, so I don’t know why they don’t start up their own association and have a go themselves … particularly since this type of complaint comes normally from those who want a campaign for a free-for-all for residential property owners, something that Alotca is never going to campaign for, and indeed could not campaign for under the terms of the articles of the association.
Hello Janet
Thanks for the prompt response, I am sure the majority of those affected by the tourist laws are thankful to yourself and others within ALOTCA and they wish you well in your negotiations.
I certainly agree that ALOTCA should not get involved in the illegal tourist rentals of Residential Establishments, especially because many of the owners purchased these properties because they were not to be used by tourists.
On the TF, the person making the most noise about inaction by ALOTCA is actually a member who has been fined and his sole stated aim is to get total freedom for all owners to be able to let without using any agents. He seems to want total anarchy in the Holiday Letting marketplace.
that’d sounds right, Bob … that’s the stance behind the vast majority of complaints or criticism I get in my mailbox.
edit: and I’ve just realized that that comment makes it sound like I get lots of complaints or criticism. I don’t. It’s very rare, thankfully.
The person I know was actually told about the law when he bought in a lapsed Touristic complex and then bought another one, now he thinks the Canarian government are kinsmen of Castro and Hitler.
I believe you can search what kind of license a property have via
SEDE ELECTRONICA DEL CATASTRO
By either searching the “referencia catastral” which you can find in your Scritura/Nota Simple or your house tax receipt
or by the Location / Adress!
The result is: ” Datos del Bien Inmueble”
and under “uso”
you can see what type the property is
- Residencial
- Comercial
- Ocio y Hostelería
That’s not a totally secure way, Nico, I’m afraid. It will describe the land, rather than the licensed (or otherwise) status of the property itself. The only way is by the statutes of a community (sometimes the escritura too) or the building licence if a property not on a community.
Is there any way of searching for the original building licence online? If the draft law text stays the same around effective use, we will need to check what type of licence our complex was originally granted. I’m hoping NC’s proposals to be able to declassify some tourist land no longer in tourist use and reclassify other land more suited for tourism, will get included in the new law. That would work much better for some complexes in Fuerteventura, like ours which is 2nd line, but right next to undeveloped front line plots which currently cannot get a tourist licence as they are too small for a 5 star hotel.
It will be in your community statutes, Petra. You can get them from the administrator.
If only it were that simple. I asked months ago, and neither the President or the Administrator seems to have any idea about the statutes.
That’s not an acceptable answer from the administrator, though the President, who’s “just” an ordinary owner, can be forgiven for not knowing. If the administrators don’t have a copy, they should know where to find them. Bring it up at the next meeting, petra. The statutes are a fundamental requirement and basic document for any community. I’m sorry I don’t know of an online resource to help here.
I will, our AGM is later this month, so I will see if we can get it discussed. There’s certainly no evasiveness from the Administrator or President, it’s just that there have been so many challenges and changes of administrators over the years, that these have probably been accidentally misplaced somewhere. But like you say, they must exist, so we need to dig them out. We have community rules, but never seen a copy of the actual statutes.
I admit that I am totally confused now – we are buying an apartment on a residential complex & are considering doing holiday rentals.
Now, everything that I read on here implies that this is totally impossible, against the law etc. etc.
However, speaking to two local estate agents, they both assure us that they can legally carry out these rentals for us (they both claim to have tourist licences). Indeed, one of them is currently renting out two apartments in the block where we are buying & says that there would be no problems in adding our apartment to their portfolio.
So, are they telling us porkies; are they operating outside of the law; is some sort of exclusion in place; what is the exact situation?
Any clear, unequivocal advice would be much appreciated at this point!!
Under the law as it exists now, and the new law going through parliament, residential property may never be let commercially for holidays by anyone under any circumstances. No exclusion. The exact situation is as I’ve described it here since I started posting on it in December 2010. I can’t be any more clear or unequivocal as I have been throughout, and there are links to the laws themselves on my links page.
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Agents can have licences to let out properties, indeed to operate as a “tourism agent” one must have a licence … but that’s a licence to be an agent! Long-term residential lets are allowed in all properties, and such agents can arrange them (as well as arranging holiday lets as an intermediary between tourist and sole agents on tourist complexes), but all agents must operate their businesses legally … and legally, there can be no holiday lets at all, under any circumstances, in any residential property.
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This is not to cast aspersions on the agents you mention. I myself have known agents who genuinely believe they have a licence to do whatever they like. On examination, however, they themselves had been misled by people who charged a fair bit of money to get them this “licence to legalize everything”. It was no such thing. It was a licence to be an agent, without which they couldn’t operate legally in the first place.
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One final point. If a property is being let illegally (say a residential property being let for holidays) then the owner will be fined whether or not an agent is fined as well. That’s €18,000 … . If you’re still remotely unsure, ask José Escobedo or Santiago Saenz: they are the Canarian lawyers who have handled the overwhelming majority of fines resulting from such lets. Their contact details are HERE.
Wow! I think it would prudent for someone to email all the estate agents in the south and inform them of the laws in case they aren’t aware…..
Maybe there should be a watchdog set up before we have a whole new generation if misled owners.
Hi Janet,
You may have saved another person from the unscrupulous estate agents here, as I posted in Oct 2012 I tested the agents then and they are just plainly lying to prospective purchasers.
It would be a waste of time emailing them, they KNOW the law, what somebody should do is inform the authorities about this and get them to take action (maybe some productive work for the Inspectors)
Well we have written to both the solicitors and agents selling us a new apartment to cancel the purchase as we were not told about this law, and we made it quite clear we would be living on the island for six months, and renting for up to six months at the start.
Well done, this law will come back to haunt the tourist trade, as no one will want to purchase, and those already with property will find there is now no money for upkeep either in a lot of cases.
Keep your money safe, Jane, until the new law is out, when there will be clarity. At that point you’ll be able to make an informed decision, and hopefully both you and Tenerife will benefit.
There is a mention in the last posts that the inspectors would ask holidaymakers for their NIE number to prove that they are not residents. We have a flat on a residential site in Adeje (never let out) but our daughter and her friends want to use it for a few days this summer. Of course she does not pay us. Do I have to give her our NIE numbers or the Padron certificate just to be sure we will not have any trouble with Tourismo? Our complex is being targeted by Tourismo at the moment (at least our administrator has said so) and we don’t want any problems with the law.
I have no information that the inspectors are asking for NIEs, just general questions such as whether the “guest” is satisfied with the tourist services provided and such like. If someone is not a holidaymaker, however, and renting residentially, then they should have a contract which contains their NIE among other details.
Dear Janet,
On catching up on the last weeks posts do KS & BM think that all the 7000 of us who have been fined are Idiots and as for the courts it is us that have paid between 2000 & 3000 euro each to employ legal representation to fight this unjust action in the courts let alone the 13800.00 euro we have had to lodge in a Spanish bank (GOD HELP US) to avoid a surcharge of 20% although our legal action is actually in the courts now.
As for Nico what is the point of suggesting a site that is insecure & in Spanish?
As for the TF I assume this stands for the Tenerife Forum old adage dont believe everything you read ( except for Janets site )
Just a point/question about the NIE thing. I’ve been speaking to someone in the UK who would like to rent for, say, 12 months but only occupy for a few weeks at a time for holidays. Do they need NIE to rent and, if so, why? (I don’t think there would be a residency issue because the total time spent on the island wouln’t be that much.)
On a related note, I’ve often read that NIE is needed to purchase but that isn’t, or certainly wasn’t, true. We bought without NIE. NIE is/was only needed down the line when it comes to paying the related taxes.
The reason they’d need a NIE is because they’d (presumably) be signing a rental contract for the year regaredlless of time in occupancy. All rental contracts (short and long term) must now have full details of tenant and owner, including NIE.
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I agree about the NIE for buying. When we bought our apartment in 2004 there was a window when NIEs were (again) not needed to buy, but by 2006, if not 2005, they were necessary again. They now form an integral part of an escritura.
I noticed this on a website;
The House is rented for short periods under Article 3 of Law 29/1994 Urban Leasing – “LAU”
What’s that all about?
Please read through the above posts, and the information on THIS page. In a nutshell, residential lets are one year or more; specific purposes (non touristic) lets are available for one day to one year. Both are legal in any type of property under urban leasing legislation. A different government department, i.e. the tourism department, is enforcing Canarian tourism legislation (evidently different from urban letting legislation): the tourism department says that any specific purpose let for fewer than 3 months will be deemed commercial and tourism-related, and so subject to a fine … regardless of what the contract might say is the specific purpose.
Thanks. This on a holiday rental website, so what’s the purpose of putting it on?
They think it gets around the problem of being fined for tourist letting. As I say, please read through the above, particularly my reply to the same question HERE.
Just to let you know that the government inspectors have arrived in Playa Blanca, Lanzarote. So far they have visited 20 homes. Apparently the inspectors were brought to Lanzarote by some residents who denounced their neighbours. Whilst they might feel aggrieved they have no idea what they could be doing to the economy of the island. Many people I know have stopped letting and are now considering selling their villas. So it seems the whole house purchase system is built around a fraud!!!
And here was I hoping they were going to stay in Tenerife and do something along with the Government about the Estate Agents that are still trying to get unsuspecting purchases to buy property with the promise ( “of course you can rent” ) although in most instances it is illegal, just to get a sale. Be warned anybody who reads this site you could end up like a lot of owners with fines for many many thousands of Euros if you do
When we bought our villa there was no mention of illegal letting from the estate agent, the bank, the lawyer or the notary. Bet they won’t admit it in court.
I’m told that one needs it in writing. If anyone has it in writing, they’ll have a claim …
Janet,
If you have it in the sales information or say an advertisement where it says suitable for rental and it is in a Residential complex would this constitute it as proof of it in writing.
No, apparently not. General full-of-promises promotional literature won’t count, because it’s expected to be full of lies. What Spain needs is the equivalent of the Advertising Standards Authority! It seems that for an individual to have a claim, it would need to a specific confirmation or guarantee in writing to that individual.
Just so we’re all clear, I’ve done a bit of tidying up on this page because I’m limited to 150 comments a page before the formatting starts playing up and this is already at 145.
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Where someone has posted a few separate comments near to each other, I’ve put them together in one post and deleted the duplicates, and I’ve also deleted one or two which were neither “questions” nor “answers”, which is the point of this page. As many will remember I closed the discussion pages because they were unwieldy, and getting nowhere … other than causing heat. We just need to wait for the new law now to see what the actual situation will be.
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Once this page gets to 150 I’ll see if I can summarise some key questions and put them as a main post at the top, then close it to comments and open a second Q&A page.
Is there any evidence to show that the government inspectors giving a warning for illegal lettings?
Do they need more evidence than Internet advertising such as finding guests in the villa at the time of inspection?
PL, when you say a “warning”, do you mean a sort of formal caution rather than issuing a fine? If that’s what you mean, then there’s no evidence that I’m aware of.
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As far as needing more than internet advertising, we have yet to see how the Courts deal with the defences, but Turismo did start using different “offences” quite early on, which suggests they weren’t confident of the strength of their cases with just internet adverts evidence. This might have been because they were aware of the Supreme Court judgment I posted about HERE. Even if they weren’t aware, it does look as though internet evidence alone would not be sufficient. Again, though, we have to wait for the appeals progress in Court now.
Is there any definition of “friends” when letting to family and friends
No. The term is used nowhere in any of the tourism laws. It is a lay person’s shorthand, effectively, for the fact that owners are allowed full private use of their properties, incuding having personal guests.
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This question has been asked time and again. Can everyone just note that I’ve added at the top of this page, in the main text, those questions which are either basic, or which are repeatedly asked. I did that yesterday. I’d be grateful if everyone could just check that their question isn’t already there, with its answer.
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This page now has 150 comments so is closed. I have started a second Q&A on illegal letting page HERE.