Update 14 October: I am pleased – to put it mildly – to confirm that we have received the court decision in the first appeals. They have been successful and the judge has nullified the fines. Those who have lodged money with the Court will now be refunded. As I’ve said previously, these rulings have precedential value, so we have every reason for convinced optimism for all other appeals of cases fined on the same grounds, and defended by Alotca with appeals submitted by Escobedo and Saenz. I haven’t smiled this widely for some time, I can tell you!
Update 8 October: I am limited in what I can say, but can report that the first cases have now been heard. The defences submitted by Alotca lawyers José Escobedo and Santiago Saenz, Tenerife Litigation, were strong and comprehensive in their own right, and were bolstered considerably by the ruling (see below) from Presidencia-Consejo Consultivo: this ruling, which was made for, and in direct response to submissions from, Escobedo and Saenz, confirmed that inspection by internet alone was illegal.
The first judgments are expected in around a week’s time, with further judgments by the end of this month, and we can say that we have reason to be hopeful. I would qualify this by stressing that our optimism is reserved for those cases defended by Tenerife Litigation, and where inspection was by internet alone, and of course we must bear in mind that, as in any jurisdiction, the judges are autonomous and independent, and it is impossible to predict with certainty what a ruling will be. I will post as soon as we have the first judgment, which will have precedential value for the others to follow. Fingers crossed.
Original post 16 September: Thank you for your patience. The following is the text from TFL (Escobedo and Saenz).
In the year 2011, the Canary Islands Government initiated the special plan to eradicate illegal holiday rentals in the Canary islands. This plan is known as PLAN DE ACTUACION ESPECIAL DE INSPECCION DE CONTROL DE ESTABLECIMIENTOS TURISTICOS Y DIAGNOSTICO DE ALOJAMIENTOS SIN AUTORIZACION.
In accordance with the Government, the inspection department of the Tourist Board has initiated more than 7.000 inspections resulting in 959 fines. The Government also alleges that it has collected information regarding 1.452 units which might be illegal and could be exposed to potential fines. Finally as per information published in the media, the Government had issued fines for more than 2.3 millions euros in 2011 alone. In years 2012 and 2013 the said plan has continued being implemented, more fines have been issued. A great many of these fines are currently being enforced by the tax department of the Canary islands Government (Consejería de Hacienda), while some owners have already paid their fines.
The current position is now as follows:
– There are owners who received the letters with the proposed fines and have not paid the fines nor presented any appeals; they could be now exposed to losing their properties in public auction.
– There are also a significant numbers of owners who have been fined but who never received the letters from the Government, therefore the fines have been published in the Canary Islands Official Gazette (BOC); the fines could now be enforced against their properties without their knowledge.
– In 2011 TFL lawyers (José Escobedo & Santiago Saenz) were contacted by many owners in different tourist areas in the Canaries. Those owners have been fined in the amount of 18.000€ for illegal holiday rentals. This is when we started a legal battle to contest these fines.
As part of TFL lawyers’ strategy to defend clients rights, we created the association known as ALOTCA (Asociación de Afectados por la ley de Ordenación del Turismo de Canarias). We registered the association with the Government and convened 2 presentations to discuss the legal consequences of the said plan. We also invited Government representatives to explain the same to affected owners. More than 60 owners trusted their defence (appeals and class action) to ALOTCA lawyers and following an extremely complicated legal procedure which finalized with a resolution from “Presidencia del Gobierno de Canarias (reducing the fine to 13.800€), these reduced fines ended up in a class action being dealt by the 4 Administrative Courts at Santa Cruz.
At the 1st hearing, the judge asked the parties involved in this class action to come to an out of court solution. The Judge appointed TFL lawyers to lead these negotiations. This initiative was initially accepted by the Canary Islands Government and subsequently (after consulting with the top representatives of the Government) rejected and therefore TFL lawyers requested in writing to re-start all legal procedures against these fines. Now our class action is starting with the 1st trials taking place in September.
On 12 September 2013 TFL lawyers received a final resolution from Presidencia del Gobierno de Canarias signed by the top legal department of the Canary island Government which clearly states that all the inspections carried out on the internet are illegal and consequently null and void. The resolution is supported by a legal report issued by the Consejo Consultivo de Canarias, the main legal advisory department of the Canary Islands Government.
The above resolution creates a precedent and has extremely important consequences for the following owners:
1) Owners who have been fined and are already included in our class action (as the Government has now admitted that the inspections carried out mainly on the internet are illegal): the judges who are dealing with the Court cases will see that the legal arguments in our appeals have now been accepted by the Government.
2) Owners who have been fined but have presented no appeals: we are still on time to nullify these fines and even get their money back should the fine have already been paid
3) Owners who have been fined but never received the letter from the Government and whose fines have therefore been published in the Canary Islands Official Gazette (BOC).
For all the above owners, it is important to note that they are now on time to nullify the fines by following the special procedure and class action designed by ALOTCA lawyers, provided that they have been fined by illegal inspection carried out on the internet by the Tourist Board Inspectors.
Owners who have not presented a defence on time might be affected by embargoes placed against their properties and these could be sold in public auction if the illegal fines are not paid on time or nullified by means of this special procedure.
Conclusion: It is not necessary to take this matter to European Courts as some legal sources are suggesting in a local news paper, the solution to this problem is here in the Canary Islands, just need to instruct lawyers to action the right legal procedure to nullify these fines.
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