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 email@example.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.