Update 28 May: First of all apologies: we are not going to post the video recorded during the meeting at Court the other day. Alotca lawyers have had serious misgivings about making it public, not least because it is in Spanish and will not only be incomprehensible to those who do not understand the language, but because it will also be impossible to contain any misinterpretations, confusions or misunderstandings that might arise. The main reason, however, is that its further dissemination and discussion cannot be contained, and given that sensitive negotiations are now on the point of starting, it is essential not to jeopardise the appellants’ cases. Widespread comment on the video, perhaps with it even being uploaded to youtube, would be unhelpful to say the least, and might even serve to create an environment in which Turismo becomes antagonised or defensive.
This is the thinking behind the decision not to release the video, but José Escobedo will instead write a legally detailed piece for me to post with a screenshot of the video explaining the current situation and the discussion in the meeting that led to the negotiations now about to take place. He has also asked me to stress that while Alotca has the majority of the cases, and in our opinion the best strategy and defence (we can’t go into detail for what I hope are obvious reasons), he and Santiago are not miracle workers. They will, however, put all their expertise and commitment into the negotiations and hope, with good reason, for a satisfactory outcome.
I’ve been asked to stress, once again, that while all identical cases, and even those that can be argued to be identical, will be put into the class action, there are other types of cases being heard in other Courts. The situation is not a simple, black and white issue, so there is much room for confusion to be created when people have partial or unvalidated information.
On a matter that is giving rise to lots of questions, I can confirm that anyone who is at the stage of appeal to the Courts with a non-Alotca lawyer can request to join the class action: they just need to instruct their lawyer to contact Tenerife Litigation in La Caleta, and the lawyers can decide between them whether the case is of a type that can be added to the action. Anyone at that stage will already have had their appeal presented to Court and so could not switch lawyers even if they wanted to. Anyone who is still at the stage of first phase appeal to the Government can, however, if they so wish, switch to Altoca.
Please note that I say this in response to queries that I have received, and José Escobedo and Santiago Saenz want to make it crystal clear that this does not represent any sort of touting for business. Finally, anyone who is already with either Alotca lawyer need do nothing unless they wish to opt out of the class action: if their case is such that it can be added to the action, it will be added automatically unless they instruct to the contrary; if their case is different, and such that it is not appropriate to the class action, it will be defended in the Court according to the instruction already agreed.
Thank you to everyone for bearing with us: it is a phenomenally busy, and complicated, time. We do hope you understand the reasoning behind the decision not to upload the video, and will have a legally-detailed and qualified piece here for you as soon as José has the time to write it up.
Update 24 May: I’ve been asked to point out that the offer of a class action with a €5,000 fine for signing a document is only available to those cases which form the majority of Alotca appeals – i.e. those whose fines started at €18,000 and which were reduced on first appeal to the government to €13,800. All cases in the class action must be identical, and clearly, not all are, with some owners being fined on the basis of random inspections and/or private adverts, others for running multiple properties as a business, and yet others who have been denounced by communities or neighbours etc.
As a general rule, anyone who has ended up with a confirmed fine of above €13,800 will have been fined for a different type of infraction – very generally these will be for offences against the “principio de unidad de explotación e intermediación turística”, i.e. sole agent system, or multiple apartment letting. All Alotca clients who fall into the class action category will now have received, or will shortly receive, an invitation to join the class action. As of today, I can confirm the outcome one of these (different) types of cases where the appeal (not via Alotca) was rejected yesterday by the Court and the Government’s fine upheld … and with no possibility of appeal granted.
Update 23 May: Just a quick update about the video. I will have my copy on Monday and once I have that, I will be able to upload it here as soon as I have technical advice on doing so, unless it’s obvious to my technophobic mind …
Update 21 May: There is a recording HERE of my interview with Atlantis FM this morning on this subject. Thank you to Jon Maxfield for the airtime to get the message out there as widely as possible.
Original post 20 May: The first appeals of fines issued under the Plan Especial went to Court last Thursday. Before the hearing, however, the judge called Alotca lawyer José Escobedo and the Government’s lawyer into a meeting. Also present were a legal assistant from Tenerife Litigation (the office of the two Alotca lawyers, José Escobedo and Santiago Saenz), and the two chief Turismo inspectors.
Before I talk about the meeting I would like to clarify two things that have been the subject of much discussion and rumour. First, the judge confirmed that Canarian law is valid, and applicable, to these cases of fines against individuals for private holiday rentals. Secondly, he confirmed that previous judgments concerning “prior authorization” have no relevance at all to them.
The judge requested the meeting because he had certain things to say in general terms about the specific cases being heard and others like them still to come to hearing. These were that he considered the fine amount to be disproportionate (as I’ve previously posted, proportionality of punishment is written into the Spanish constitution); that Alotca lawyers had prepared a strong and detailed defence; that the Government nonetheless had a case that could be developed during a hearing; that such cases would take a considerable time to hear; and there were so many of them that Court time would be inordinate. As a result, he had consulted with other judges and it had been decided that all cases would be heard by that same judge through the one Court, number 4 in Santa Cruz.
Having made these comments, the judge then asked that a class action be formed for an out of Court settlement which would apply to all the appeals underway at present. Since Alotca has the vast majority of cases to be heard, and was behind the first appeals to be heard, the class action is to be conducted through Alotca, with cases being handled by other lawyers forming part of the Alotca action. The settlement will require a document to be signed by the appellants acknowledging that they had been in error, that this error had resulted in a breach of the law, that they accept a fine as punishment, and, naturally, confirm that there will be no future breaches. The document will stand as a legal judgment so that even with an out of Court settlement, any future fines arising from continued letting would be at the second offence level of up to €30,000.
The Government has been given a month to liaise with José Escobedo and Santiago Saenz to negotiate the settlement, involving the final document to be signed and the level of the fine: the judge said that in his opinion, it would reasonably be in the region of €5,000. The Court provided José Escobedo with a list of all cases involving other lawyers, and any appellant with a non-Alotca lawyer who wishes to join the class action must instruct their lawyer urgently to contact Tenerife Litigation so that their cases can be presented to Court as part of that action. Those who are already with one of the two Alotca lawyers need do nothing.
There is a video recording of Thursday’s meeting which I watched this afternoon. I will have a copy uploaded onto my website as soon as it can be transposed into a file in a format that I can upload. I am dependent on the help of others to do this, so please bear with me.
José and Santiago ask that any enquiries come via me to free them up to get on with this work. Evidently they expect to hear directly from lawyers of those who have been fined and who are to join the class action. In terms of general questions, however, they ask people to email me. If anyone has just received a fine, or does so over the next few weeks, please also contact me urgently to find out what Alotca lawyers will need so that time is not wasted with them answering basic initial questions.
On a wider basis, Alotca is about to start negotiations with the OCU (organización de consumidores y usuarios), the Spanish Consumers Organization, which is preparing to fight the recently announced national proposals to limit tourist letting throughout Spain. The fight is very far from over, but with regard to the fines issued so far, we at last have clarity.