Update on “illegal letting” asociación (ALOTCA) following committee meeting yesterday

Update on “illegal letting” asociación (ALOTCA) following committee meeting yesterday

There was a committee meeting of the founding members of ALOTCA yesterday, and I can report the following points.

As I’ve previously posted, the first appeal of the fines resulted in a €3,000 reduction; the second appeal received a 15 page letter essentially saying that all argument was irrelevant and pointless, and that the problems resulting from Turismo’s actions were neither their fault nor responsibility. Now, a third appeal to complete the first stage of appeals has been presented, this time to the President of the Canarian Government, Paulino Rivero, himself. A meeting is also being sought with the President to press the points of this appeal in person. Evidently depending on the President’s response to this third appeal, any next stage will involve appeal to the Courts.

I will update on the appeal to, and meeting with, the President as soon as I have the information, but unless he gives a positive response, then those with fines will need to decide if they wish to carry on with legal action to the Courts stage. If they do, they will need to contact their lawyer to give Power of Attorney if they have not already done so. There will be new fees payable to the lawyers at this point, and at present it is impossible to say what those fees will be. Negotiations are already underway with a Procurador (the equivalent of a barrister required for procedures over a certain value) with a view to forming a class action. I’ll update on this too as soon as I have information.

Regardless of the above, some of the earliest appeals have now expired, the process having exceeded the six months within which they had to be concluded. Some of those with fines have received letters to this effect. The lawyers are seeking certificates of expiry for other fines of the same batch where letters have not been received. They stress, however, that Turismo has confirmed the Government’s intention to check up on those who have received a now expired fine to see if they are continuing to advertise. If they are, then they will be fined again and a second fine will be at the higher level of around €30,000. The expiry of the first fine procedure does not eradicate it, but just means it has to be archived. To be clear: anyone in this batch with either a letter or certificate of expiry will not have to pay the fine. The fine stays on record, however, so that a second fine will be of the higher amount.

There is confusion, it appears, at Cabildo level regarding complexes defined as “dormant touristic”. A recent meeting resulted in clarity in that sense at least, if no other. Further meetings will shortly take place to determine specifically whether such complexes require 50+1% or 100% community agreement to revert to touristic status.

With regard to the petition, it is now clear that when we are ready to launch it, those who may sign are specifically Canarian “residents”. This restriction applies to Spanish as well as other EU nationals. This is “resident” in the wider sense, so not fiscally resident, but those with both a Certificado de Registro and on the padron, i.e. either with or able to acquire a Certificado de Empadronamiento.

With regard to the asociación itself, anyone can join regardless of their status in the Canaries, merely needing to provide the information requested on THIS form – it’s the same as given in a previous post. Please just download, scan and email back to me (to help@janetanscombe.com). The “ID” requested can be just a passport number (I’ve put links in the Links and Laws page to the legislation allowing anyone to join), though please indicate that the number is a British passport number if that is the ID you’re providing.

25 Comments

  1. have a duplex at residencia adeje paradise en playa pariso. some owners are getting quite worried at the level of illegal renting and are unclear if it is the responsibility of individuals or of the administration to report those owners whom we know to be advertising on the net. can you advise what to do??

  2. Author

    In the first instance, a group of concerned owners should approach the administrator, who should send formal letters to those who are illegally letting telling them to stop. The comunidad, through the administrator, can then report them to Turismo if they don’t stop.

  3. Hi Janet, (again)

    Your comments in your last but one paragraph concering who can sign are surely against EU law.( Not your ruling I may add)

    As a EU resident & owner in Tenerife, who as been traced by an advert in another EU country & who has been fined, who also has an NIE number in Tenerife we should be all allowed legally to vote.

    I belive the Tenerife Govt have already lost two cases in the European court concerning Capital Gains & Expenses against Income, These cases were lost because they differentiated between Canarian residents & other EU Nationals.

    It would appear that the Canarian Govt’s only want our MONEY & then hope we disappear (THEY ARE WRONG).

    Regards Mervyn.

  4. Author

    I hear what you say, but there is a Canarian law on petitioning for a change in the law (link in the Links & Laws page). I think if it went on to a discrimination case then that would need to go to Europe, but the law on petitions seems secure, not least because it is a regional Parliament and equally “discriminates” against Spanish nationals as well as EU foreigners. None the less, you are right about them being wrong that people who’ve been encouraged to invest here will just disappear. This is why ALOTCA was set up, at least in part.

    For what it’s worth … anyone with a property here can get a Certificado de Registro. The rule is that applicants must have one once they’ve been here for three months, but I’ve helped people apply when they’ve first come over, intending to stay …….

    The Empadronamiento is a given. Everyone with a property here should register with the town hall and get the right to vote in the local elections. It’s necessary for almost everything anyway, and has NO implication in any other regard …..

    No reason why everyone shouldn’t be able to fulfill both these requirements …

  5. Ashters has posted for information

    This morning we received a registered letter from the Tourist Board with only 7 days to collect it from the post office.
    We did not go for fine reduction but straight to court.
    The fine was reduced from 24000€ to 18400€ immediately
    The letter said we have 2 choices.
    1. Pay the full fine of 18400€ into court before they will start the case. If the fine is reduced they will give us the money back!!!
    or
    2. Go to your bank and get an AVAL. Which is a bank guarantee for the same amount.The money is frozen at your bank until released by the courts. The modelo is Suspension ejecucion de acto administration.
    Are people aware that the fine has to be paid up front before any court proceedings?
    What happens if you do not pay?
    We have frozen 18400€ at the bank and the AVAL costs 1% of the fine
    or 184€
    We knew nothing about this before today

  6. Author

    What happens if you don’t pay is that the fine is charged against the property the fine was imposed on.

  7. Author

    I now have legal confirmation that the situation you portray is actually not possible. Spanish Administrative Law is absolutely clear that all appeals to the Government, including the third-stage Recurso de Alzada, must have been presented before an appeal to the Courts is possible. So, you must appeal to the Government first, and then to the Courts if that first appeal is rejected.

    With regard to fine monies and the rest, I also now have legal confirmation that although in theory the fine has to be paid at the end of the Government-appeal process (or charged against the property if not paid), the two main lawyers handling the majority of the appeals are applying to the High Court to suspend the fine enforcements while the cases are under process in Court. We are still waiting to know what the outcome of this is.

  8. Hello Janet
    Thanks for your reply. I am sorry I may have mislead you.We have finished the Government appeal process. The fine was confirmed down from 24000€ to 18400 €
    The next communication was the demand to either pay the money into court or to provide a bank Guarantee. We have 1 month to do it.
    There was no mention about putting a charge on a property. It was just pay up or give an “AVAL”
    We are waiting for the thrilling instalment
    I am still consulting with my lawyer.

  9. Author

    If you neither pay it nor give the aval, it will be charged against your property. Tell your lawyer to appeal to the Court for it not to be enforced while the Court case is underway.

  10. Ashters, could you please say which your offense was to receive an initial €24,000 fine? Most fines are €18,000 reduced to €15,000 or €13,800. How many properties were you exploiting? Are you an owner or an agent? Thank you.

  11. Author

    That was for two apartments.

  12. Hi Janet and Carol
    That was for 3 private apartments that we were not exploiting.
    They are owned by the family.

  13. Author

    Two fines, though? What were the fines for?

  14. The fines were for 1. No inspection Book 2 No claims form
    Each 9200€
    There are interesting times ahead. We are saving our arguments for court.

  15. Author

    So it seems you were fined for exploitation, even if you weren’t doing so. You will see as you read through my posts that there are some established arguments to use for a defence. The main thing is to have a lawyer.

    Out of confusion, your fines are the normal sized fines for single apartments, i.e. 2x€9,000 = €18,000. But you said they’d been reduced.

  16. Ashters, were the apts touristic or residential?

  17. Hi Gerry
    To the best of our knowledge they are touristic .
    It is a long story for court.
    We will see.

  18. Has there been any court cases yet for illegal letting?
    Does anybody know the time scale on this legal process?
    The “offence” was alleged to have been commited in Sept 2010.
    Is it never time expired?
    Could it go on another year/years?
    Hope somebody knows something.

  19. Author

    Yes there are cases in Court and yes I know the timescale … and have posted it several times before. The first cases are now in Court, and no they’re not subject to time limits. They were submitted around last July (from memory) and will start to be heard any day now … they should have started to be heard last October or so but the Courts are just at a standstill.

    The timescale for this appeal is around a year. So there is nothing imminent, at all.

  20. As I posted last week be aware they are now charging 20% interest on top of fines that have not been paid.

    I also know my that my appeal is one of the first cases to be taken to the court but they are still charging this interest.

    They are not happy with driving holiday makers away the sooner I can sell my property and I am not alone the sooner I can invest my money in a Country that appreciates investors and bring up a law that they have not used for over 15 years just because they are skint.

    There excuse for there actions is to bring the islands to a 5* all inclusive model (utter rubbish) there are three sites in Los Gigantes The Royal Sun,Diamond apts both referbished since the crack down no Tourist Licence but renting apts and the Stil Los Gigantes Hotel refurbished but not 5* or Inclusive as I have said before the crackdown is to kickstart the construction industry & banking they have had our money they do not care about us anymore re the actions above

  21. Unhappy. Is there anyway you could contact me?

    Janet? Could you supply my email address confidentially to unhappy?

    I’m in a simmilar situation and just want a chat if possible?

    Thanks

  22. Author

    Kidder, yes, of course, I’ll email unhappy with your e-address right now.

    edit: done.

  23. Dear Janet,
    I have read your last post with alarm, I belive it was me that highlighted that the courts were imposing a 20% interest charge. I have emailed Jose Escobedo twice on the 21st & today but have had no reply.

    The courts are not putting the interest charge on if your lose the the court case, they are putting it on NOW, without legal advice what are we supposed do.

    We employed Jose Escobedo to fight this fine but we just do not know where we stand

  24. Author

    You were one of the first to become aware that the interest rate was set at 20% because yours was one of the first appeals to reach Court, but my post this morning was based on communication yesterday with José Escobedo and confirmed correct before I posted it.

    José has got agreement for all his cases to allow suspension of enforcement and of interest being charged, and of embargoes on property and bank accounts, but the Courts have required that for this to be permitted, the fine amount must be lodged as an “aval”, a guarantee.

    Yes, the interest is applied now, as the fines are being enforced as of now, but evidently if the case is completely successful in Court then no fine will be payable, and so no interest either. The likelier scenario, however, is that the fines are reduced to a minimum €1,500, so technically the case would still be lost. As such, the interest would be payable on the reduced amount unless the money is in a locked bank account. There would also be legal costs including, if accounts and/or property were embargoed, those to raise the embargoes … again, unless the money is placed as a Court guarantee.

    The choices are as I’ve set out in my post today HERE, and José says that he has written to all his clients along those lines. You should either have had such a letter or one will be on its way.

  25. Author

    I’m closing this post to comments now because the one that they will relate to is HERE.

    Please post any further comments on the latest situation on the fines there. Thank you.

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