Update 2 September: I had a meeting with José Escobedo yesterday and we discussed the issues surrounding the two questions he posed at the end of his article which I posted below. We also discussed the situation with respect to cases still in court.
With the exception of one particular batch of cases, the government has now largely accepted that its initial fines – based on internet inspection alone – are being thrown out of court based on the defences José has prepared. Away from the courts, the system here allows an application to be made direct to the government to cancel the fines, and these applications are now being accepted because the government knows it is pointless proceeding. So those who found out about their fines too late and now have a charge lodged against their property and/or bank account, or those who have a court case underway (some are still to be heard in January and February 2015), can apply now for cancellation. This would mean that the fine never existed: those in court would stop their process, and those imposed with the owners never knowing or appealing, would be lifted.
José has spent the last several weeks working on future possible defences for fines imposed on the basis of the more rigorous inspections now being carried out, involving physical on-site inspections, interviews with administrators and presidents of complexes, etc. I am now in a difficult position because to give significant detail about these potential defences would forearm the inspectorate, and that would undermine the legal work José has been doing: suffice to say that the defences are based on legal points tangentially related to the Ascav campaign for “vacational letting”.
I’ll say no more about the defences, and I hope that’ll be understood, and move on now to our discussions about that Ascav campaign. José used the analogy of “firefighting”, and of course we have the same metaphor in English, where an authority introduces a rule and then just stamps out problems arising from it when they erupt, rather than introducing cohesive rules in the first place. This is, in part, what has happened with tourism legislation in the Canaries, including the new law which came in last year and which is currently under review. Part of this review now, it is clear, involves plans to “regulate” this so-called vacational letting in accordance with agreements given to Ascav.
As I’ve said before, Ascav is primarily concerned with Canarian owners throughout the islands. These Canarian owners, however, are voters, which is one very good reason why their campaign has hit home in a way that Alotca’s never could. The government has to show its own electorate that it is at least listening, and it is now clear that it will do that by introducing regulation of some sort. The firefighting method of legislating, however, runs into a problem here because the government also has to appease Ashotel, which is fiercely opposed to any regulation: Ashotel, indeed, says that there is no need for regulation at all because commercial holiday letting is illegal under the terms of Canarian law.
Canarian law, though, is not the only law applicable in the Canaries. We are part of Spain, and as I reported HERE last year, there is new national legislation to flexibilise the rental market. This law is self-evidently not part of tourism legislation, either national or regional, but it concerns rentals. And article five has significance because it can be deconstructed to read that regional parliaments are actually required to pass “vacational letting regulation”, or at least must do so if they wish to have any control over regional tourism measures or their enforcement.
I am not going to go any further into this because José is now drafting something and we will then be working on it together – I’ll post it at that point, hopefully this will be in the near future. What I’ve just said, however, should at least explain why the government is keen to come to agreement with Ascav: not only do they have to appease voters, it seems they should have specific regulation in their legislation in any case. Needless to say, José and I both think that due to the conflicting requirement to placate Ashotel, this regulation, when it comes – and they say it will come at the end of this year – will not be liberating. It will, though, be enough for the government to say it has listened to its voters and issued the regulation that was demanded.
Obviously until we see the proposed regulation we are guessing, but I think our guess is an educated and informed one. Meanwhile, the defences José has been working on will be valid for any fines issued on the basis of the more rigorous inspections but before the vacational letting regulation is in force. I’ll update again when José has finished his draft report and we’ve worked it up for publication.
Original post 21 August: I have an update – more a consolidation report, really – from José Escobedo of the situation now that the 2013-2014 judicial year is over and the courts are now closed for August. I will be meeting with him in a couple of weeks to discuss the questions he poses at the end, which evidently relate to how the law is interpreted in respect of advertising, and to what the result will be of the current legislative review and, I imagine, what internal changes to the law might arise with regard to “regulating vacational property”, the Ascav campaign. I will post again, obviously, after that meeting.
I am pleased to report that I have now had trials in all 4 courts in Santa Cruz. The last trial took place in July in court 3; initially this was the only judge reluctant to accept that fines issued from internet inspections were illegal. In fact the Government presented a precedent in this court in which this judge rejected the claim of an owner who had been inspected on the internet.
I can now confirm that I have court decisions from all courts (1,2,3, and 4) confirming that these massive inspections made on internet are null and void and consequently ilegal.
As a result of this legal work and subsequent court rulings, the Government is canceling the fines to those owners who have been fined based on inspections made on the internet. Recently we have received a substantial number of resolutions from “Presidencia” of the Canarian Government confirming that the fines are illegal and outlining the Court decisions that have already been issued in our cases ref. this matter.
May I point out, that this fine cancellation is not automatic, but has to be applied for by the owner who has been inspected on the internet, fined and probably had an embargo placed on his bank acc. or property. There are a number of people who advertised on the internet and been fined who do not even know about this, specially those who were advertising property in homeaway.com parent web pages.
It is also important to note that we have had cases where owners or estate agents have been wrongly advised and when they received the first letter, have written to the authorities admitting that they have been letting properties or have been advertising properties on web pages. In these cases there is little we can do but we have managed to reduce the fines.
Those owners who have been fined for internet advertising and have lost the opportunity to challenge the fines through the ordinary appeals, have now got a last chance to get the fine cancelled and remove the embargoes on their property and accounts …. provided that they have not already admitted responsibility.
The legal battle is now over and there still a small door open for those who have been illegally fined if they use the right and last legal resource.
Finally, the main question now is where do we go from here:
1) Can owners rent their property?
2) Is the law going to change soon?