Illegal holiday-let inspections and fines situation (continued)

Illegal holiday-let inspections and fines situation (continued)

Update 21 December: I attended a closed “strategy meeting” this morning organized by Tenerife Litigation, a co-operative arrangement between two highly-respected lawyers in south Tenerife, José Escobedo and Santiago Saenz. Joining them was Marcus Cabrera.

The meeting, with some 20 or so very involved or interested parties, was called to clarify the situation to date and discuss strategy for the future. What follows below is an update to the present situation, themes for further defence against the punitive and ferocious fines that are being levied, and ideas for strategies to lobby the Government to amend the 1995 law.

First, I can confirm that the first responses to appeals were received yesterday; this is just the start of the replies so those who are still waiting a response will no doubt receive theirs shortly. The fine has been reduced on first appeal by €3,000; from €18,000 to €15,000. As part of the defence, the lawyers had presented the T&Cs of the websites which were provided by Turismo as evidence of illegal touristic offer; these T&Cs said that the websites were not responsible for the content or able to confirm that personal details were correct. Turismo’s response was that this defence was inadmissible because they did not accept websites as evidence …

This first appeal-response stage is still open, so it is not yet time to appeal to the Courts. The lawyers are still arguing with Turismo and there is a further 15 days in which to submit additional argument to see if the fine can be reduced again. Whatever the result of this process over the next couple of weeks, it will then be time to take appeals to the Courts. As I understand it, the lawyers will now need Power of Attorney from their clients to continue with this stage, so anyone who is implicated needs to confirm what their lawyer specifically needs. Power of Attorney does not require clients to travel to Tenerife: it can be arranged through Embassies in Britain and Ireland.

Before moving on to themes for defence and future strategy to lobby for legal changes, I want to clarify the following points that have come up several times previously as questions from concerned owners:

  • This is not a time-limited operation. It is a “Plan Especial” and is not envisaged as being confined to 2011 alone.
  • It is not just foreigners who have been fined: there are Spanish, and specifically Canarian, victims too.
  • The fine size of €18,000, from a possible range of €1,500 to €30,000, is based on the Government’s opinion that illegal letting is “competencia desleal”, i.e. unfair competition.
  • It is unlikely in the extreme, to the point almost of impossibility, that there will be any co-ordination between the Canarian Regional Government’s Tourism Department and the National Government’s Revenue Department. This would not help Turismo even if there were such co-operation because the Hacienda does not know the nature of the income declared as taxable.

Turning now to themes for defence against these fines, the lawyers intend to pursue three main avenues. It is important not to give away too much at present, but the themes will be political, economic and procedural. There is still plenty of scope for legal argument, though the Government’s own intractability is suggested by the puny reduction of the fine by just €3,000. There is still some way to go, however, before the final stage of appeal to the Courts is reached.

Turning finally to the wider issue of strategies to lobby the Government to amend the 1995 law, there is to be a public meeting (as presently planned, anyway) in the last fortnight of January. A local lobby is being organized by some concerned individuals in Santiago del Teide and they hope to bus in representatives from Canarian businesses (taxis, restaurants, etc). It is also hoped that even the southern Mayors (particularly of Arona, Adeje and Santiago del Teide) might attend now that they are beginning to realize the effects this enforcement will almost certainly have on local tourism.

One argument will be that the Government is itself damaging the economy and acting in an unfairly competitive way in terms of all-inclusive hotels. Another claim will be that even within the constraints of the existing law, the Government does not have the right to insist on the type of tourism the islands offer – that there is an implicit right for, say, groups of naturists, gay tourists, “eco” tourists, to holiday in a way that is not offered either by touristic apartments or hotels, of whatever star category.

To end, the lawyers had clear advice for owners who feel they have no choice but to continue to advertise while this lobbying is going on. That advice is firstly to remove any suggestion from adverts of a touristic offer: not just “holidays”, but “touristic services”, including cleaning, safe storage boxes, airport transfers etc. Secondly, for those with clearly touristic adverts, to write to the administrators of any websites hosting their adverts and say that you do not agree with what is reproduced in your name and that all your letting conforms to the Urban Letting Law – i.e. that you are only offering residential lets. It will be essential to keep a copy, and to send the original by registered mail for proof of delivery: here, there is also the facility of Burofaxes which prove what was actually in the letter sent.

I have pruned the original post with all the information to date on it because it was becoming unwieldy: it is HERE.

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