Important information for anyone fined for illegal letting who found out too late to appeal, and update on appeals themselves

Important information for anyone fined for illegal letting who found out too late to appeal, and update on appeals themselves

There is a group of people in the situation of having received a fine for illegal letting, but who did not find out about it, normally through discovering their details published in the BOC, until it was too late to put in an appeal.

From a meeting that I had earlier this week with José Escobedo, it has become clear from his research that Spanish constitutional law, together with precedent, requires the Government to do more than just send a letter to whatever address is readily available here, and then go straight to publication in the Boletín. Constitutional legislation is quite clear that all possible means of identifying someone’s whereabouts must be exhausted before a fine is imposed without individuals being able to defend themselves.

José Escobedo intends to present the cases of those in this situation to the Turismo minister responsible for the fines, Rita Hernández, asking for resolution. There is no deadline for this submission. If the submission fails to get a positive response, then the cases can be brought to the Constitutional Court itself.

If anyone is in this situation and would like their cases to be included, they need to contact José Escobedo, providing him with copies of their Escritura, a letter from their community administrators confirming that an address was passed to the inspectors, copies of NIE and passport, a tax form if applicable, and any other documentation that shows that an alternative address has been made public in Spain. An Escritura alone does this, of course, because it is a public document and as well as the Spanish address it contains the UK address of the owner, but any supporting paperwork showing that an alternative address was available in Spain will add weight to the argument that the inspectors did no more than the minimum investigation. José says that his fees for this will be the same as for the appeals, i.e. €880.

On the subject of the appeals themselves, the first cases are now starting their journey through the Courts, and an appeal is being made to the Courts for suspension of the enforcement of fines until the end of the appeal process – they are usually enforced beforehand. Not the least of the arguments is the seeming discrepancy in fines between the provinces of Santa Cruz de Tenerife and Las Palmas de Gran Canaria: the latter appear to be lower, sometimes considerably so, a discrepancy that is apparently legally questionable, not least because whatever the reason for it, it gives rise to concerns of favouritism since Sra Hernández is herself from the eastern province. It has also not gone unnoticed that some politicians in Lanzarote, although fined, have been so with extremely low amounts.

If anyone has any questions on this, please post them in the comment box below. If I don’t know the answer I’ll check so that you are as informed as possible.

43 Comments

  1. Sum it all up in one word……CORRUPTION!

  2. What are the differences in fines Janet?

  3. Author

    about half, it seems …

  4. Thanks for this update Janet. I have heard virtually nothing from Jose since paying my 880 euro in April so any news at all is helpful.

  5. Author

    I’d check with him, Ed, but I would think you are still in the first “appeal to government” stage. I’d expect him to be in touch at the end of that with whatever was the outcome, whether rejection, acceptance or adminitrative silence. I’d expect to hear something in October, in your case.

  6. Ed

    If you contact Jose by email he should be able to provide a timeline of events to date… I did the other day. My appeal went in 27 march ..

    Looks like I will be going to court with quite a few others….

  7. Surely a case has to be proved before a fine is imposed. This Touristic outfit seems to be judge, jury and executioner.

    Somebody smarter than me said “Nobody expected the Spanish Inquisition.”

    No mention of off-complex villas.

    No mention of ‘long let’, which is not covered by this legislation. Some people would consider anything over 1 or 2 nights to be a long let.

  8. Author

    There is mention of villas in other posts concerning the new legislation, walter, rather than in here, where I’ve concentrated on what people can do if they’ve been fined but found out too late to appeal.

    Yes, Turismo is a Government department, and they are judge and jury for the fine … and they consider that finding an advert is proof that the law forbidding adverts has been broken. The Courts are not likely to overrule them in that particular respect because the advert is an undeniable fact. The Spanish constitution, however, allows an appeal to the Courts, and there are other reasons for appeal which I’ve dealt with in detail in other posts, including Turismo’s inability to prove who placed the advert.

    As far as long lets are concerned, no, they’re not covered by this legislation because they’re not touristic. Legally, a long (residential) let is a minimum of a year. Anything under a year is a short-term (particular purpose) let – and for touristic purposes, the tourism department says that anything under 3 months will be deemed commercial touristic exploitation.

  9. The Lanzarote Property Owners association stated in their September bulletin:

    “Villas scattered generally within the resort of Puerto del Carmen that are detached with a swimming pool should not, in theory have a problem applying for a tourist license once the new legislation is approved by the Parliament at the end of the year.”

    The bulletin goes on to describe the (simple?) process to be followed.

    Is this likely to be the case on all islands?

  10. Author

    Whatever the law finally says will apply to all islands, yes. We don’t yet know the final form of the law.

  11. Janet… You mentioned length of time to court.. ? I am at 6 months now and at final appeal stage, so that’s another 3 months. If no reply it goes through the courts…?

    Jose states after these last 3 months you have 2 months to apply to the courts? Are we saying then that it’s another 12 months to go through the court process?

  12. Author

    Yes, and yes, afraid so.

  13. Hi Janet, I fear we will be fined and need to know what is the position regarding advanced bookings already taken. We have been visited by an Inspector and the guest was honest and said they were renting the apartment. I’m aware we’ll be liable for a fine, people are saying it’s usually around 18,000 euros. Due to the issues now regarding renting in Tenerife which we were unaware of until recently, we had no intention of renting again after the final booking was honoured but this is some time away. Will the people who have booked still be able to take their holiday with us? We are extremely worried and upset but have obviously been in the wrong. Many thanks.

  14. Author

    I’m so sorry for your situation, which is now sadly really straightforward … and a matter of pure choice. The holidaymakers are doing nothing wrong: it is you, even unwittingly, who’s been breaking the law. If there is any comeback in the future it will be on you. Yes, you can continue renting; yes, you can honour bookings. The inspectors, however, will not leave you alone now they’ve fined you once, but will check up subsequently to see if you’re continuing to let commercially.

    If they catch you, the second fine will be higher than the €18,000 or so they’re fining people for the first offence. Second fines are in the region of €30,000. You have to make a decision based on whatever date your bookings go up to, and whether you think the inspectors are likely to inspect you a second time in that period. No-one can answer that – it’s a risk assessment that only you can make. I’m sorry to be so stark about it, but there’s no point in sugaring the pill.

  15. Mrs M.

    Did you advertise on the Internet?
    Did any other apartments get visited do you know?
    Was it your guests who told you of visit?

  16. Hi, we did originally advertise on the internet but removed the advert a while ago. I’m not sure if anyone else was visited but there are several apartments near us who rent out and who are still advertising even now. Yes, I believe it was the guests who had the visit and contacted the people who clean the apartment who then contacted us. I know some people may be asking guests to lie on behalf of the owners but we obviously didn’t and wouldn’t want to put people in that position. It’s now our problem to deal with. We are coming out in a week or so and therefore will have to seek advice when we arrive. Can anyone recommend someone we can see for advice? The whole situation has made me ill and I need to see someone asap. Thanks again.

  17. As Mrs M has not been notified of a fine yet, I presume that current bookings would not constitute a “second offence”. There seems to be quite a long timeline between inspection and notification.

  18. Sorry Mrs M, I did not see your post just before I posted. I am sure Janet would agree that Jose Escobedo in San Eugenio CC is the best person to consult.

  19. Thank you for the help and information, we will contact Jose, much appreciated.

  20. Author

    Yes, I agree with Doreen … go to José Escobedo.

  21. Mrs m? When was this?

    They visited my complex in June 2011 and didn’t receive anything till march 12.

    I’m at the appeal process if you read my earlier post.

    There’s a lot of help on here.. Try not to panic. There’s plenty in your situation Nd a lot further down the process. We are all in this together…

  22. The visit was saturday just as the guests were leaving, Thanks for the support. Just want to sell my dream home now, its a nightmare.

  23. Know how you feel Mrs M although we have escaped any fine so far. I’d quite happily sell up tomorrow and never visit again. Tenerife is dead in the water!

  24. Mrs M – is your complex residential or touristic?

  25. I’m assuming it’s residential but we did buy without being told there was no letting allowed or anything to say we couldn’t let. We did try to get advice on how to let legally a couple of months ago and were told, as we all know now, there is no way i.e permits being issued etc. We had no intention of taking further bookings after we became aware of the situation but wanted to honour the advance bookings and draw a line under it all. I even fear my family and friends visiting which they do often. I’d prefer them being there and enjoying my home than it standing empty.

  26. Author

    If you email me the complex, I’ll try to confirm whether it’s residential or touristic.

  27. Author

    OK, that looks residential to me. It’s not being found in any touristic apartment search, anyway.

  28. It may be that you have been that you were reported to the inspectors by resident neighbours objecting to your holiday letting the apartment.

    Our president has recently reported that inspectors are door knocking on residential complexes and questioning occupants to establidh their status.

  29. Yes i suppose this could be the case. In all its a very quiet area and lots of the residents rarely come out. As said previously i will be yet another person leaving tenerife for good and selling up.

    We are in the position that we could manage the mortgage if need be but my concern is the possible increase in crime. Its not unusual for all the apartments in our complex to be unoccupied even now.

  30. empty property is a hassle in the heat, you end up with little visitors moving in as well. sorry to hear about the inspectors calling, does seem that it could be your resident neighbours to thank. so many people are still trying to rent though, so the inspectors may be doing more of this direct approach in any case.

  31. Author

    As I’ve said before, the door-to-door checks are part of what their job description requires them to do.

  32. Bet they are about as popular as traffic wardens over here!

  33. Do you mind me asking what complexes have been visited in las americas???

  34. Author

    The only ones I’m sure of from memory are Parque Santiago 1 & 2, and Tenerife Royal Garden. If you have a particular complex in mind then please do say and I’ll check. If you prefer not to say openly, send it to me through the Contact Me page.

  35. Janet

    Just been on the other forum, and it says tourism Are asking for money pre court… ie after final appeal… Do you know anymore on this? Is this the latest?

  36. Author

    Yes, that’s the way it works with fines, so it’s not just an oddity on Turismo’s part. Fines must be paid, or a bank guarantee given, or they will be charged against the property before the case is heard in Court. That’s quite normal. As I’ve said, José has submitted a petition for his own clients asking for this requirement to be waived, but we’re still waiting on a decision about that.

  37. We have found our name on the BOC page showing a fine for a property that we sold almost 2 years ago. My Spanish is patchy but it would appear to have been for a date mentioned before we sold the apartment. As far as we can gather the fine was sent to the administrators of the complex who returned it as we no longer owned the apartment. What is the situation now and what do we do? We don’t know how long it has been on the BOC

  38. Author

    It will all depend on the timing in your case. Even allowing for how slowly things move here, it seems odd to me that you have a fine now for letting a property you sold two years ago. Really you need to have a look again at that BOC page: somewhere on it there will be a reference to the inspection or complaint that gave rise to the fine as well as the date of it. Moreover, if you’ve seen your details in the BOC, there will be a clear date of publication, so you’ll know exactly when the fine was officially imposed.

    If it does transpire that you were fined while still owners then you could still be chased for the fine. Fines are levied on the owner, not the property, and normally, if the fine is unpaid, it will be registered against the property. If the property has been sold, however, then the fine cannot be registered as a charge on it, and will remain levied against the person.

    The Government says that it intends to use existing agreements with the Inland Revenue to chase people in the UK if they have sold up here before the fine could be registered against their property. People have been sceptical, but the Government seems very confident it can do this. It’s possible, too, of course, that the whole thing has lapsed because the Government ran out of time, so you really need to consult a lawyer here to check what the actual situation is – whether you are still at risk of being chased for the fine, or whether it’s all over and nothing to worry about any more.

  39. We think the fine was for a date in November 2010 and we sold the apartment in February 2011. Can you tell us how we can contact Jose Escobedo please? We will be visiting Tenerife in December.

  40. Author

    That would make sense, and it is very unfortunate sense because it means you were one of the first to be fined by the new inspection team. José Escobedo’s contact details are HERE. Good luck!

  41. Thank You

  42. Hi Janet,
    I need to get a copy of a denuncia listing 17 villas on my complex accusing them of illegal letting by neighbors. The Gobierno tourist officers allowed me to look at the denuncia but not copy it, but said I could apply for a copy. One of the signees denies permitting use of his name so I am being called a liar which I’m not so I believe he has a case against the main signatory for using his name. Either way I need a copy and need it fast. Can you help?

  43. Author

    Hi Millie, I can’t I’m afraid. As far as I know it will be Turismo who have to provide a copy … they’re the ones with the denuncia paperwork now. If you’re able to get back in touch with whoever it was who showed you it in the first place they’ll be able to tell you how to apply for a copy. Sorry I can’t help.

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