FAQ: Illegal letting

This is a very complicated issue, so if your question is not answered below, please feel free to ask in the comment box at the bottom of the page. Click on any question to expand it to show the answer. Please also see HERE for the constantly updated situation for legal letting options in all kinds of property.


THE LEGAL SITUATION

 

FINES

 

HOLIDAYMAKERS

 

DENUNCIAS

 

INSPECTIONS

 

SOLE AGENTS

 

ESTATE AGENTS

126 Comments

  1. So basically is it possible to buy a property in Tenerife and find an agent to rent it but we can specific the dates that we want to use it

  2. Author

    yes, if you¡re talking about touristic properties, and find one with an agent who is prepared to let you do that. Some will not … and bear in mind that you can’t just “find an agent” for a touristic property, but have to use the on-site sole agent who runs the complex.

  3. You could for example buy in a touristic complex like Cristiansur but you still need to register your apartment through the sole agent with the tourist board and you can use one off the onsite management to look after It or the sole agent.

  4. I think you will find that generally the sole agent will not entertain being used as a means of getting legal and then you employing a different company to do the management of the apartment.

    I suspect if you did that the sole agent will quickly be onto the tourist board to cancel his association with you which could then raise the issues of illegal letting should you continue down this route. IMHO of course.

    Perhaps the Cristiansur are a little more relaxed about these kind of things or maybe the sole agent and the onsite management team are the same or working alongside each other.

  5. Onsite management existed prior 1995 and do work together with the sole agent and my apartment is registered with sole agent that’s the way it is in Cristian sur.

  6. David, its nice to see different functions working together and I’m sure for the benefit of everyone involved. Sadly not all tourist complexes enjoy this positive relationship.

  7. Hi Janet,

    A great website, we have just returned from Tenerife and rented a villa. The agents (UK based company) are withholding the deposit for no apparent reason.

    We know the villa is a residential one as its not on those two websites you list, plus it was in a residential area, with a Police Notice (ie no noise etc) in force.

    Based on this, would we have any leeway in mentioning this to the agent? Would threatening a Denuncia work, or would they just know it will take years.

  8. Author

    UK based agents will likely be prepared to take their chances. The owners if you know them are a different matter because they liable to a fine, but basically, your only option is to rent a legal holiday property where there are full legal safeguards in place.

  9. Hi. I have made a few complaints to two neighbours in particular who I suspect are illegally renting. I’ve also complained to the people renting because of noise, air con abuse etc.and am met with the same argument. That they’re ‘Friends’ and no moneys being taken. What steps can I take to disprove this.

  10. Author

    I don’t think you can disprove the particular claim. What you can do is start to compile a diary, with photos ideally, and with witnesses. The inspectorate have clear ideas on normal private usage, and as an example, someone with 52 “friends” each of whom come for just one week a year when the owner is never present, is not going to be believed. Someone else, however, whose apartment has a handful of separate guests spread over several months, with the owner present some of the time, is not going to be thought to be hiding illegal letting behind a “friends and family” excuse.

    The inspectors make their own minds up as to whether the law is being broken in any given case, and issue fines accordingly. These then must be appealed in Court … when it will be the judge who decides who to believe. But the inspectors have the right to issue fines according to their own view, and so you will need evidence that persuades them.

  11. Thanks for that info Janet. I hear what you say about a few friends spread over the yearb But one owner in particular has a 6 month rental, same people every year who abide by the rules and we don’t have problems with,its the others she let’s to like last night they came in at 1.45 am. And carried on their evening on the balcony. In normal voices, not loud but definitely not quiet for that time in morning. Every resident was indoors except them. I spoke to them and was told they weren’t doing anything.The rules are clear ,pinned up at lifts Silence from 11 pm til 8 am I’ve been told by president these rules are also for Arona not only residential complexes and to call the police in these cases?

  12. Hi Janet forgot to add, its really not the letting out that’s the problem its a fact that short-term let’s and friends of owners are the ones breaking community rules and causing disturbances and stress to us who have to speak to them.This is why we believe money’s being taken because if someone gets a freebie from a friend they abide by rules.?

  13. Author

    Yes, call the police if there is a disturbance, and owners are responsible for the behaviour of their “guests”, so the community must contact the owner and insist that he and his “visitors” abide by community rules. As to your second comment, however, in my own personal experience it is owners on holiday in their own properties who are sometimes the worst culprits when it comes to “high holiday spirits” …

  14. We experienced similar problems to Maud and neither the owners who were tourist letting nor the President wouod do anything saying it was a dispute amongst neithbours despite it being a private residential complex. When i eventually went to the local Police they told me to call them at the time the noise was being made and they would attend. They stressed there was little they could do after the event hence call them when the neighbours are noisy. In our area there should be no noise between 11pm and 7am and several residents do have to get up for work. I think the problem is that many owners wont call the Police for various reasons not least the backlash which you might receive from others in your community if letting is rife as it was on our complex. Nearly everyone stopped speaking to me but i had had enough.

  15. Regardless of the type of complex surely unreasonable noise is covered under the community rules so therefore the president should deal with the problem?

  16. Author

    yes, if it is a general problem, but if it’s a neighbour-to-neighbour one then the president is within his/her rights to say call the police. For example, we were woken up one Sunday morning at a quarter to six by frantic banging on the front door. My husband, as President, was being called upon by a resident furious at being woken up by their next door neighbour’s bed banging against the adjoining wall. No-one else was affected, no general disturbance was occurring, and so this was not something he was prepared to deal with. The administrator confirmed that as a neighbour-to-neighbour problem, it was not a community issue, and that the appropriate course of action was for the resident to call the police on her amorous neighbours …

  17. If one had an apartment in a complex with a tourist license, would it be possible to still do airbnb but when confirming a booking, doing it through the agent? I.e. just paying them whatever the fee is. Or do they have to be involved in every last detail?

  18. Author

    Please see the first question in the Sole Agent section above.

  19. Hi, probably a daft question but here you go. I have a property that is classed as a ‘local’ , a commercial unit. It was originally a small bakery but was converted to a studio flat around 10 years ago. They just ripped out the ovens and shelving and put a bed and a shower in. The esciturer never changed. It’s freehold on a mainly residential complex. Do the same rules apply to a ‘local’?

  20. Author

    What rules do you mean? If the community rules, then yes.

  21. Author

    Hi. Janet. But so many say they’re not letting and everyone in their Appt is family or friends. I myself are having problemd with a neighbour who just happens to have with fi, water filter, air con, and offers this to her ‘guests’ ?? for the price of an appt clean up € 30 ?? Whose fooling who. She forgets when I was her friend, she told me she was taking money and her sister in law said when we asked her to switch the air con off when they left the Appt for a night out, as it is about 3 ft from us. ‘ We’re paying good money for this’. She still insists shes not renting. I agree about these people not contributing to the economy, as The money is certainly changing hands in England in this case and as she uses it for around 7 weeks in the year, spread throughout, is undoubtedly not spending it HERE. My life has been miserable, from late nights, air con abuse as well as abuse from the ‘GUESTS’ who think because they’re paying it, entitles them to abuse me,an owner whose paying one of the highest community fees in Los Cristianos.Sick yes… And as for President and Vice. Are doing nothing…. Please How do you catch these people out. All suggestions welcome.

  22. Author

    All you can do is denounce to Turismo, either individually, or as a community, or through a lawyer. Details of how to do it are in a question above.

    Do also bear in mind that, as I said in answer to a question on that page about people “getting away with it”:

    One problem, of course, is that you cannot know who has been fined. The only public record, in the BOC, is for those who have been fined but where the fact needs to be published because the owners were incommunicado. Despite the numbers published in the BOC, they are in the vast minority because the majority of owners are successfully contacted, and there is no public record. There are owners who have been fined to my personal knowledge who have no option (in their opinion) but to continue renting illegally to avoid mortgage default and repossession. To an observer it looks like they’re flouting the law, getting away with it, and cocking a snook at the government and fellow owners alike.

  23. Janet your column has helped me greatly over the years, could you inform me as to how many ‘friends’ tenants or owners can have visiting our pool. We are a small residential community and recently a tenant has had 4 adults and 3 children using our pool , he is not in attendance when they visit , another tenant has 4 adults and 2 children using our pool, we only have 15 beds so some owners cannot get a bed. I was informed it is 2 visitors maximum and the resident has to be in attendance , is this correct ?

  24. Author

    The pool is for residents and their personal guests … the number isn’t defined by law though your community’s internal rules may limit it. By law, though, owners do not have to be present when their personal guests are in residence.

  25. Thanks Janet once again very helpful.

  26. Hi Janet
    When our community was formed approx. 9 years ago, the owners decided to purchase pool beds , this was so that all beds would match. The beds were very expensive. Over the years some beds have become damaged ( done mostly by tenants or ‘family or friends’ of owners who rent out there apartment ) leaving us with only half the original amount of beds. Some owners who never use the pool are reluctant to spend more money on pool beds, they feel it is tenants or ‘ friends or family’ who are gaining the most from the beds which under the circumstances is understandable. Does the community have any obligation to supply pool beds ? Our community is residential.

  27. Author

    The community is you and your fellow owners. You need to discuss this at the next AGM to decide what you, as a community, wish to do about the situation.

  28. Hi Janet,
    We had our holiday cancelled ( by email!!) by the letting agent 2 weeks prior to travelling in August. They gave no explanation except that it was not possible to rent any accommodation on the complex anymore. They gave no help in finding an alternative and did not respond to our replies. We were eventually refunded by the agent after more than a week, but we had to spend €600 euros more on alternative accommodation. Can we pursue the agent/ owner for this cost? We had no idea that holiday properties in Tenerife needed to be licenced, we booked in good faith with the agent through holiday lettings. We never would have booked had we known, and will never book another villa holiday in Spain again as we don’t know who to trust.

  29. Author

    no, I’m afraid that you won’t have any comeback for the increased cost of alternative accommodation. Your best bet will be your holiday insurance company, but I think that the reply is likely to be that you’ve been refunded and that the cost of replacement holiday accommodation was a matter of personal choice on your part.

    As far as never booking another villa holiday in Spain again is concerned, you wouldn’t have the same problem again because you now know the legal situation, at least as far as the Canaries is concerned, and know that anything you book through an online hoiday site could very well be an an illegal let. All you need to do is go to official Government websites to look for legal accommodation (there are two on the Resources page), or ask owners on holiday sites for official proof that their property is being legally let.

  30. Hi Janet I have not contacted you for a long time but I need your knowledge on an issue that may effect the outcome of our next AGM to be held in October. I shall try to be as brief as I can.
    Our complex is residential but for at least the last two years we have been taken over by manyshort term holiday makers. The problem started two years ago when a member of the committee, who It is believed has close links with the developer rented at least 20 areas below the apartments above on a long term basis. These areas we have recently discovered had never been granted a ‘habitation certificate’ by the council but the committee member has converted these areas into one bedroom apartments and they have been rented out on a weekly basis ever since even though he knows it is illegal to rent short term on a residential complex. Because of this other owners have started renting their apartments which has added more misery to other owners. I have now learned that the committee member is putting himself forward for president at the AGM in October and if he gets enough votes it will destroy our complex.
    Quite a number of owners have formed a group to try to stop the commercialisation of our complex and will put forward an owner to fight this.
    My question to you is : Can this committee member use the coefficent quota of the areas he has rented long term because he may get enough votes to do what he wants?
    I am convinced that this will be contested but I can only hope that anyone who rents long term and for whatever reason will not be allowed to have a vote.

  31. Author

    Have a look at the Meetings section of the Living on a complex page HERE, especially the two questions “What can we do about multiple owners who can outvote us every time?” and “Is there a limit to the number of proxy votes a president votes with?”. Hopefully they will clarify the voting system.

  32. Hello there Janet, you mention always about rental properties in touristic areas,complexes ect but what about the legalities of a rental property/idependent houses/villas in a rural areas, where it is not zoned or classified touristic areas.Do these still come under the umbrella of having to obtain a licence for rental, or is it not possible to obtain a licence in a rural area?

  33. Author

    yes, if a residential property is located outside of tourist areas, it can apply for a vivienda vacacional registration.

  34. Many thanks for your quick reply Janet, but isnt this type of licence being looked at by the monopolies comission to make changes with pressure on the canarian government???

  35. Author

    yes, but to make it more flexible still, and to include touristic properties. It is very unlikely to make any restrictions at all given the reason it’s being redrafted, and under its current terms rural properties will be able to apply to register. All the information is HERE.

  36. Thanks Janet for your comments, very helpful, so if looking at applying for the vv is it better to wait until the the new terms have all been amended….

  37. Author

    I don’t think it will make any difference. In fact, I’d apply now because if you’re covered now there’s no reason not to, and if by any chance the new terms do actually impose restrictions on rural properties (which they are hardly likely to) then the Government says that the existing terms will continue to apply to any applications that are received before the redraft is approved.

  38. Many thanks for your very useful tips Janet.

  39. Author

    I’m not aware of any insurance that will cover a fine and/or expenses for illegal activity. If you appeal a fine and win you get your money back anyway.

  40. I’m lost for words that Roger could even ask a question like that ….Really !!!

  41. I’ve just began researching the purchase of a property and am very much discouraged from what I have read so far regarding the ever changing laws around letting.

    From what I’ve read, non-resident owners are either taxed on their rental income or a deemed rental income tax or “Renta Imputada de Inmeubles Urbanos”.

    The idea of not being allowed to rent a property but then also being taxed for potential rental income if you do not rent seems contradictory to me. Am I missing something or is that just how messed up Spanish Tax Law is?

  42. Author

    Yes you are missing something. You are allowed to rent short- and long-term, just not for holidays, unless under specific circumstances (e.g. you have a touristic property which is let through the sole agent, or you have a residential property which is let via the vivienda vacacional system).

    The tax system assumes a certain level of legal letting, and that is taxed. Any property that is owned by someone who does not live in it, and for which there is no declared rental income, is assumed to be let out part time – legally – but with undeclared rental income. It is this undeclared assumed income that is taxed as deemed notional (i.e. undeclared) rental income – which people call the non-resident tax. Periods where there is actual declared rental income are not subject to this tax.

    The laws are not “ever changing”; they are remarkably stable, and have been in place, virtually unchanged, since 1995. The various ways of owners renting property are detailed HERE.

  43. Hi Janet
    Once again many thanks for the help your column provides. Janet if an owner is in debt to the community but he has the proxies of other owners can he vote on their behalf. If other ‘matters’ arise during the AGM how do we know how the owners who have provided their proxy votes would vote ? or can he only vote on matters on the agenda ? or can he not vote at all.

  44. Author

    He can vote on behalf of owners who are not in debt, just not on his own behalf. If he has a proxy then he has a free vote on their behalf – regardless of whether he is voting in the way that they would were they to be present, though one would expect or at least hope that a proxy would know the wishes of the owners being represented, and vote accordingly.

  45. Thanks Janet very helpful

  46. Dear Janet,
    If I request that a vote to denounce illegal letting, on our residential complex, be on the agenda for our AGM, can it be refused by the President or Administrator?

  47. Author

    No, I don’t see how they could refuse to put any issue on the agenda, but anyone can denounce illegal letting, it doesn’t need to be on an AGM agenda.

  48. Dear Janet,

    Good afternoon, thank you for providing us this beautiful website! With such a lot of useful information to much to take in when you visit your page for the first time.

    How can you be a sole agent? can you give me some more information about this i really would appreciate it if you can let me know some more specific details about it.

    Kindly regards,

    Nick Hoff

  49. Author

    Anyone wanting to be a sole agent needs to get 50% + 1 of the units in a community to sign up with them. These units will include, normally, those who were previously signed with the former sole agent, who ceases to become so when his own holding drops below 50% + 1. The new agent then registers with the Cabildo. You might find THIS page useful – it has a section about sole agents on it.

  50. Hi Janet
    We have a holiday home in a residential complex,we returned this month to find that the baron the island in the middle of the pool(which has never been used )
    Is now fully stocked and in business!
    The bar belongs to Gomasper,who has since gone bust !
    We are a residential complex,is this legal?
    There’s been no vote! It just appeared !i am being told that Gomasper has opened it,until I see the admin I don’t know if this is true.
    Even so,can this happen on a residential complex
    Thanks for any advice

  51. Author

    A residential complex can choose to have a bar, as far as I’m aware, but it’s the administrators who need to confirm the details of how it’s opened without vote, who’s opened it … without the details, it’s impossible, really, to comment.

  52. Hi Janet, We have just returned from a 7 day Holiday in Tenerife . Booked a 2 bedroom App for myself and relative both OAPs The App was really nice but was taken aback when were told we needed to pay in full with Euros This we did After the first day we realised the Adjacent App was being completely refurbished The Drilling and Knocking was Horrendous It completely ruined our Holiday I since found out the person we rented the App from also owned the Adjacent one As u can imagine this as made matters much worse as surely the owner should have the COURTESY to warn us of this . I have contacted them but all they say is thank you it will go to the Administrator. We booked with Booking.com Paid 700EUROS In cash JENNY

  53. Author

    I’m afraid you have little recourse because it won’t have been a legal let … all legal apartment lets here are (and must be) booked through the on-site sole agent. Sadly with an illegal let I don’t see what your options are if the owner isn’t being cooperative … other than reporting him for illegal touristic activity to the tourism authorities, or threatening to do so unless you get some compensation.

  54. Thank you Janet We will do that Jenny

  55. Thank you Janet for your prompt reply, all information is very helpful in making my descision of how to go forward.

  56. Great website Janet. My first question is if I let my property out for periods over 3 months do I need to apply for a license?
    So for example if I have a property outside of this tourist zone and I’m doing long term let’s (3-12 months) do I need to even apply for this license?

    Sorry just one more thing… I notice there are a large amount of airbnb adverts for shared and private rooms particularly in las palmas. Surely it would be extremely easy for the authorities to get addresses, turn up and take action. Do you have theory why this isn’t happening?
    Or is ok to rent out a spare room on airbnb?
    Sorry about all the questions…
    Rob

  57. Author

    Please see HERE for how to let legally. There’s no “licence”. As to Air B&B, it’s illegal here and yes it’s easy for the authorities to get addresses. As I’ve explained many times, however, they cannot issue fines just on the basis of adverts, but can use adverts as a starting point for investigations.

  58. Hi Janet
    I have a question expanding on the family and friends answer already posted.
    Is there a difference between a guest paying or not paying for a short term stay?

    I assume that a non paying guest must be legal but the question is raised for a paying guest.

  59. Author

    Well, if no money changes hands the person will presumably be a personal guest. If someone’s paying, they’re a tenant, and under tourism law, that’s illegal. I’m not sure what you’re asking. Can you clarify?

  60. Hi Janet
    I think you have answered my query. To clarify the question arises due to differing interpretations of a friend/guest. From your reply I assume that a friend/guest who is paying for a short term stay becomes a tenant and therefore that constitutes an illegal letting and a friend/guest who does not pay is not.

  61. Author

    Quite. If money changes hands, it’s a commercial let, and for tourism purposes, that’s illegal unless the booking goes through the sole agent. The law quite simply takes social norms as its base. If someone visits you in your home as your personal guest, you don’t charge them. You don’t actually have to be there in person to receive them, but you don’t charge them.

  62. 1. Is there anywhere a definitive statement can be found with regard to what constitutes an illegal let on a residential complex. Where can this be found.

    2. If an agent of an owner rents an apartment on a residential complex with a contract for six months but tells the tenant they can leave after only two weeks thereby circumventing the six month contract rule and effectively making it a holiday let, what action can be taken by the community, president or administrators take.

    3. If on a residential community an apartment is let to a company who rotate their staff on a weekly or fortnightly basis does this contravene the residential rules against short term renting. E.g. An airline rents an apartment for six months and then their engineers change each week and use the apartment.

  63. Author

    1. The only illegal let on a residential complex is a touristic one because touristic lets must be in touristic accommodation unless the property is a residential one registered under the terms of the Vivienda Vacacional decree. This is all defined in tourism legislation, all the links for which are on my Resources page.

    2. All offences under tourism law are the responsibility of the owner, so whatever the agent does, the owner remains liable. Agents can also be fined, however, and their fines are significantly higher than those of individual owners. As to what a community can do, communities can vote for administrators to issue formal notice of legal action, and the president would then be the representative in the name of the community for that legal action against the owner. The community can also discuss with qualified legal advice what options there are for pre-empting and enforcing the law – given that the president is liable personally if seen to promote, or even tolerate, illegal letting. This is in addition to denouncing the owner (and maybe agent too) to Turismo to inspect and issue a fine.

    3. A business which rented a property and used that property for frequent staff rotations would not be illegal as such – presumably the rental would be subject to a short-term specific purpose contract for “staff accommodation”. Turismo could still decide, however, that it was being used for holiday lets, and issue a fine accordingly, regardless of the company’s claim, and the company would need to show the Courts proof of its business activity and the requirement for such frequent staff rotations to have a hope of getting the fine overturned. I say “the company would need to show proof” but in fact it would be the owner who would be the one with the problem because it would be the owner who would be fined, not the tenant (i.e. the “company”).

  64. Thank you Janet, a very good and very clear summary.
    So much real estate agents and owners continue to be illegal, with the explanation that the law is unclear. The law is clear, and your post even more, thank you very much to explain it with other words, to allow a perfect understanding.

  65. Hi, re whether a property is on a tourist or residential complex, I recently enquired with an estate agenct whether a property on golf del sur had a sole agent on site and was told that the complex had a tourist licence, which presumably means it can be used as a short term holiday let. I know Janet that you believe that area to be residential. Do you think the estate agent is being entirely truthful?

    Janet

  66. Author

    no, that’s not quite what I said. When I said “Many areas which appear at first glance to be touristic are in fact mainly or wholly residential. The Golf del Sur is a case in point” I meant that it appears to be touristic pure and simple, but there are in fact many residential complexes there. There are, though, also touristic ones. It is quite possible that the property you are referring to is touristic, but just as possible that it isn’t.

    One way you can check for yourself is to see if the property appears in one of the authorised tourist sites – have a look at the Resources page HERE, scroll down to the Tourism Resources section, and you’ll find a couple of links to Cabildo sites listing approved touristic properties. These are legally touristic, and so if the property you are referring to is in there, then it is almost certainly genuinely touristic.

    Two things to bear in mind. First, the Cabildo listings are neither exhaustive nor always completely up to date, so the fact that a property does or doesn’t appear there is informative, but not conclusive. Secondly, you should always still get independent qualified legal advice when buying even if such a property checks out as correctly listed officially, has a 24 hour reception, etc.

  67. Hi Janet.
    We have an apartment on a residential complex and are trying to stop illegal holiday lets.
    A Company who hold keys for 5 apartments on the complex are telling us that because they hold a travel licence then our owners can rent out through their Company for 1 night or more? Has anything recently changed as I read from your page a while ago that short term lets in a residential complex are not allowed under any curcumstances.

  68. So.. what I am asking is..can an agent let using the rrendamiento de temporada
    Contract??

  69. Author

    I’ve never actually said that “short term lets are not possible on residential complexes under any circumstances”. Short term lets are possible, just not touristic ones.

    The alternatives for one-day lets of residential apartments are (as I explain HERE):

    1). There can be rentals under urban letting legislation, on temporada contracts of between 1 day and 1 year. They must be for a specific purpose other than tourism, and Turismo says that any issued for under 3 months will be deemed “touristic” and so illegal. This just means that the owners – and the agents – are at risk of a fine from Turismo even though under urban letting legislation the contracts would actually be legal. These are two separate areas of legislation and they are in conflict in this respect.

    2). If the properties are registered under the terms of the Vivienda Vacacional decree they can be let out to holidaymakers for any period.

    No “agency travel licence” makes any difference to this. Please see the first question in the Estate Agent section above where I’ve explained how agents themselves can be misled by people claiming to provide licences to do whatever they want.

    edit: I’ve just seen your follow up question … as I say, they can do so provided that the specific purpose stipulated in the contracts is not “holidays” or anything along those lines. Even so, they run the risk of Turismo deeming them to be holiday lets and issuing a fine which would then have to be appealed.

  70. Thank you Janet for your prompt reply.

  71. Hi Janet , sorry for asking for probably the millionth time but please can you clarify.
    Am i right in saying that any touristic (holiday) letting on a residencial complex in the Canaries IS ILLEGAL .
    Am i right in also saying, that owners on a residential complex that dont advertise , but rent through a resident relative or friend,, or through a friend from the local bar, is also ILLEGAL .
    Thank you.

  72. Author

    Please see HERE for the only possible ways to let out legally, all sorts of properties.

  73. The reason i asked these two questions Janet ,was because we have Owners that advertise on websites to rent their homes for holiday lets.
    However we also have on our residential complex ,owners that dont advertise but have friends, relatives and other residents (on the complex ) who arrange holiday renters for them. They then class these renters as friends and family, so owners think , and argue , that they are doing nothing wrong .say they are legal
    Seems that no matter how many times myself, others, president and admin tell them . They dont listen and wont listen, and say they are right.
    to clear this problem ,would you say the answers to my previous post be YES and YES. Thank you.

  74. It looks to me Michael that these owners who are letting via relatives , friends etc know full well that what they are doing is against the law. They are clutching at straws to try to justify their illegal activities. They will carry on even if Janet confirms yes and yes. You should go to the offices of the tourist inspection team in Santa Cruz and denounce them. It is quite a straightforward procedure.

  75. Author

    But I have already answered those questions on the link I gave you earlier and on this very page in the Q&As above. Your situation is commonplace, I would say, so they are questions I have addressed time and time again. As Snowbird says, it doesn’t matter who says it’s illegal, nor how many times it is said, they will carry on. And if you were to show them this answer, they will say I’m not a qualified lawyer, which is true and “therefore” that my information is wrong, which it is not, and it can be confirmed with any lawyer who knows the laws in this area. But there would then be other excuses as to why the lawyer was “wrong”. So:

    Am i right in saying that any touristic (holiday) letting on a residencial complex in the Canaries IS ILLEGAL .
    No. Some touristic letting on residential complexes is legal. This is what the Vivienda Vacacional decree is for. The details and conditions are on the link I gave you earlier.

    Am i right in also saying, that owners on a residential complex that dont advertise , but rent through a resident relative or friend,, or through a friend from the local bar, is also ILLEGAL .
    Not necessarily. If those properties have registered as a VV then they can do this. Assuming they are not registered as VVs, however, then the simple fact is that “friends and family” has no meaning in Spanish law. As I say in direct response to this very question above: Friends and family is not once used in any of the tourism laws. It is a lay person’s shorthand, effectively, for the fact that owners are allowed full private use of their properties, incuding having personal guests. The lawyers are quite sure that owners are allowed personal guests whether they themselves are physically present or not.

    Personal guests, however, don’t get charged. If a property is let to holidaymakers who pay for that service in a property that may not be let to holidaymakers, it is illegal. If there is no advert, however, then it will require a denuncia of the owner(s) to Turismo – ideally the community would make the denuncia, but individual owners can do so in their own right.

  76. Thank you so much Janet for your reply, having read the LINK, which i should have done more thoroughly before posting again , i know understand the answers that you have given above. and i will explain to the appropriate people , especially those claiming “friends and family”.
    Sorry for being a pain Janet ,Thank you again .

  77. Hi Janet
    Wonder if you can assist please, we paid over £2,000.00 for a month rental through xxx and the apartment turned out to be a hovel on a building site. We moved out and had to pay again.
    xxx have a book with confidence guarantee which is useless, they have just refunded 100 euro – as a good will gesture.
    We have been advised that the apartment does not hold a tourist licence – is there a web site I can report the owner to please? I do not want them to scam anyone else.
    Many thanks

  78. Author

    I’ve anonymised the details in your question for legal reasons, but yes, there is somewhere you can report illegal lets to … just see the first question in the Denuncias section above.

  79. Dear Janet.
    Please do you know what areas the goverment have decided to allow vv. You mention non touristic areas which serms a bit of a grey area?

  80. Author

    no I don’t know! No-one knows yet. All that has happened is that a tourism minister has confirmed the redrafted decree is not too far away, and that it will allow VV registration in areas that are currently not allowed. Currently, VV registration is only permitted in areas that are wholly residential as defined in municipal PGOs – as opposed to those areas defined as touristic or mixed (as I say HERE).

    I cannot say more than I said HERE earlier today, that the conditions that will apply “will only become clear when that decree is published. Until then, existing rules apply. Naturally I will post the details as soon as they are available.”

  81. Hi Janet, Do you have any views on the latest court decision regarding the ability for holidays lets in a tourist area announced last week?

  82. Author

    The court verdict was a fortnight ago and I posted HERE about it.

  83. Hi Janet,
    We have a property on a residential complex in Puerto Del Carmen Lanzarote. The complex is in a touristic area.
    We have some owners who short term rent their property to holiday makers for up to £375 per week.
    We believe that this sort of business is against Spanish law. We also believe that any of the “Illegal” holiday makers will not be insured in case of an accident. An accident that could well leave all owners at financial risk should a large claim be upheld in court.
    We also understand that there is no insurance to cover these holiday makers as to get this insurance we would need a touristic license.
    Also some of those who rent believe that the holiday makers they bring into our complex are legal.
    Could please clarify these points for me as we have an EGM coming up to try and resolve this issue.
    Kind regards,
    David Binnington

  84. Author

    I have clarified them time and again! Apart from all the questions on the page above, please see the Letting Legally page and the Post directory of posts I’ve made on the subject since December 2010. I cannot clarify beyond this!

    Please can you identify which question you can’t find an answer to? For the record, though, it is not against “Spanish” law, but Canarian. Please see HERE.

  85. I am the President of a community in Ibiza which is not registered for tourists.
    It has been brought to my attention that some apartments are renting to tourists. What is my legal responsiblity and who should i bring this to the attention of apart from our administrator.and what is their role when they know also

  86. Author

    Tourism legislation is governed regionally, and so Ibiza comes under Baleric legislation. I do understand, though, that it’s similar in scope to that which applies in the Canaries, so your first action should be to establish the contact details for the regional Government’s tourism department and then seek the “sanctions” section. They should have a denuncia procedure for you to report illegal activity to.

    Having said that, as I’ve said before, an effective administrator is the key to it all for communities trying to control illegal letting. It takes a president and administrator with a will to deal with the matter, and to be prepared also to take legal action in the name of the community against owners who will not comply with the law. Your community may already have a lawyer engaged for day-to-day legalities, and they will be the ones who will be able best to advise you on how to proceed independently of the tourism authorities.

  87. Hi Janet, that’s for all the helpful advice you provide to residents and non residents on the island. There is a lot of illegal holiday letting on our residential complex
    I would like to approach our administrator to ask to see our communities statutes. Just unsure how I would ask for this in Spamish and what the proper definition for this.
    Many thanks

  88. Author

    the Statues in Spanish are Estatutos. That’s what you ask for, though it’s possible the administrator won’t have a copy. If they don’t, then the developers will.

  89. Thanks JANET our complex was built in the early 80 can you offer advise on how we could go about this as developer is probably well gone by now and administrator not very helpful

  90. Author

    If your administrator doesn’t have a copy, and the developer has gone out of business, then I would consult a lawyer as to the best way to acquire them.

  91. What are the rules for a complex that is both residents and holiday apartments we keep getting different rules with people insisting we ate on s residents complex when my paperwork says we have bought a timeshare on a holiday complex regards

  92. Author

    There are not different rules because your complex is either residential or touristic. It can’t be both. If it’s timeshare, it’s touristic, and so no-one is technically allowed to live permanently in it.

  93. Hi, do you have a list of the property requirements necessary to apply for a Vivienda Vacacional licence? I have heard that there is a requirement for a 24 hour reception, road side access, a minimum ratio of bedrooms to bathrooms etc. Thanks in advance.

  94. Author

    Please see THIS main information page on letting legally where the VV scheme is explained with relevant links, including to requirements. There cannot be a 24-hour reception because the VV scheme applies to residential complexes where by definition there won’t be any reception!

  95. Hi JANET I live in a residential complex in a touristic area in the south about 50% of the apartments are holiday let. We are aware the owners are in breach of the 1995 law. A high proportion of the apartments are managed by estate agents in Los Cristanos My question what is the legal situation relevant to to the estate agents and the actions they are involved in

  96. Author

    Please see the question “Is it always the owner of the property who’s responsible for illegal letting or would the agent be held responsible instead if there’s someone advertising on the owner’s behalf and collecting money?” in the first section above.

  97. Hi Janet,
    Apparently Arona never made the distinction between touristic or not. The administrator of our complex told us that in the statutes of our complex it isn’t stated that it is residential.
    You make the distinction between touristic or residential, an apartment in this complex in Arona is neither.
    What is the legal situation in this case? Can someone register an apartment as a VV? Or is all tourist letting illegal?

  98. Author

    Arona is a municipality with a suspended PGO (see HERE), but your community will have been issued a building licence which clearly determined your complex as residential or touristic. Basic question is whether you have a 24 hour reception. If so, you’re touristic. If not, you might well not be. The council will have to confirm either way. You can only register as a VV if you’re wholly residential. If you want to email me privately the name of the complex I might be able to help … email help@janetanscombe.com.

  99. We are looking into purchasing an apartment in Costa Adeje but wanted to use for personal use and friends and family (non charged) . We are looking to be no further than 20 minutes from the beach with a communual pool. Is this a possibility or will all apartments / villas be deemed as touristic and therefore must be let ? We are not interested in letting as we want to use the apartment when it suits us, not when an agent tells us its empty.

  100. Author

    You will be able to find residential complexes near the coast, but do be aware that owners in them often let out to holidaymakers, even though this is illegal. As such they are often not the most comfortable place for permanent residents. What you must do, however, is ensure that the estate agent knows your requirements, and be certain to buy only on a residential complex otherwise you won’t legally be able to live in it full time. And once you have found one, get an independent and fully qualified lawyer who has nothing at all to do with any agent you are using nor the vendor, and make sure that the lawyer knows what your requirements are so that s/he can do the conveyance with your best interests at heart.

  101. Hi Janet,

    Thank you for your reply, Just to clarify this would be used as a holiday home and only used between 6 -7 weeks a year, we are non residents living in the UK. Does that in itself have any further restrictions ?

  102. Author

    No, there aren’t any restrictions for non-residents. The only difference residence status makes is to types of bank accounts and different tax returns.

  103. Hi Janet, is it legal to let out properties on a residential complex which is in a touristic area but was originally designated as residential ?

  104. Author

    No. As I explain HERE, the current form of the Vivienda Vacacional decree allows residential properties to be registred for private letting only if they are not in touristic areas as defined in municipal PGOs (ayuntamiento local planning designations). If the area is currently designated as touristic the property cannot be registered for private letting, and private holiday lets in residential complexes are only possible if the apartments are actually registered.

  105. Hello Janet, l live on a residential complex (Royal Marina Golf) Amarilla Golf, a consrtium of 3 or 4 Spanish have purchased 14 apartments and have started letting them out on holiday lets l am sure that this is illegal even though this are was developed as a touristic area but when our complex was built it was designated as Residential.
    To make thing worse one of the Spanish has managed to get himself elected as president.
    Could you clarify if under present laws are these apartments able to be let out on short term lets ie between 7 to 14 days

  106. Author

    It is not a matter just of whether your complex is residential but whether the area is wholly residential as well. As I explained in my last answer to you, immediately above your question today, the current form of the Vivienda Vacacional decree allows residential properties to be registred for private letting only if they are not in touristic (or mixed touristic) areas as defined in municipal PGOs (ayuntamiento local planning designations). Since your area is not wholly residential, it is currently not possible for residential apartment owners to register under the Vivienda Vacacional scheme to let privately to holidaymakers. And any other type of private holiday letting of residential properties is illegal in any case regardless of area.

    Having said that, urban letting legislation (as distinct from tourism legislation) allows short-term “temporada” contracts in any area for non-residential purposes … but still not for holiday purposes. So the apartments you mention can be let out for periods as short as just one day, but not to holidaymakers. Your community administrator should take action if these properties are being let commercially without temporada contracts for holiday purposes, and as explained above, issue a denuncia, an option that is also open to individual owners. As to electing a president, that is a matter for the whole community, and if the majority don’t like it, then they need to supply an opposing candidate at the next AGM. This requires like-minded owners to communicate with each other and discuss their options.

  107. I read with interest your reply janet to Peter Monkton. My confusion is – how do authorities determine that people coming here for, say three months,
    and renting an apartment, are actually holidaymakers? Does the owner have to produce evidence that their tenants are here for study/employment purposes ? There are many retired people who come here renting for six months, they come to enjoy the sunshine and their status as retired in itself means they are not working, therefore, by definition they are holiday makers, but how could the authorities prove such a state?

  108. David, you are correct, many people come here and stay for a long time. Some of them register with the authorities but many of them do not. They will come to the notice of the authorities if they buy property or a car or if someone issues a denuncia against them or if they fall foul of the law. We met some people who live here permanently who are unregistered, they don’t speak Spanish, pay U.K. tax and go back to the U.K. if they need medical treatment.

  109. Author

    As Stewart says, the authorities don’t necessarily know unless something triggers their awareness like a purchase of a car or property, which needs a NIE and so clearly identifies the buyer. Other than that, the authorities will only know someone is here if they try to conduct a further transaction or run into official problems (legal trouble or medical difficulty, for example). At that point, if they are considered to be here without complying with the legal requirement to register with the police as a foreigner living in Spain, their legal status will be “irregular”.

    EU nationals cannot be deported for being in the country “illegally” because they arrived legally, but by not complying with national requirements and fulfilling their legal responsibilities to register, they will be in a very uncomfortable position. After Brexit, however, it is impossible to know how British nationals will be treated if they arrive and fail to register – or anyone currently here who is still unregistered at whatever point the UK officially leaves the EU.

    Those who don’t register when living here permanently are to some extent victims of an attitude created by a different culture. Spain’s a country where people are expected to fulfill their legal requirements responsibly. No-one comes along checking, or sending reminders, at least not in the sense that they do so often in the UK. Some who are “irregular aliens” will get away with it, but they run a constant risk, and for those who get into hot water, it can be quite difficult without the correct registration.

    As to temporary residents, whether three- or six-monthers, they are not technically “living here”, and so are not required to register as foreigners “living in” Spain. Their only real concern is whether their stay here trips them over into fiscal residency in Spain, which is a whole different ball game.

  110. Janet, I thought that obtaining an NIE was a requirement if you stay for three months or more.

  111. Thank you but my question is, temporary renters in residential apartment blocks situated in a touristic area – are owners of properties legally allowed to rent to them? They are not here for work, or study, but here to enoy the climate away from harsh winter climates in UK, Germany etc. If they are renting illegally, then how do the authorities police this and are owners liable for this kind of renting?

  112. Author

    no, Stewart, a NIE is only a requirement if you conduct official business in Tenerife. The 3 month requirement is purely for Certificados de Registro … but only for people “living here”, so a visitor of 4 months won’t need to register. Someone coming on a six month holiday – but for less than the fiscal residency period – would not need anything other than a passport if they weren’t intending to conduct any official business, whether buying a car or using a notary for some purpose.

    David: yes, of course people are allowed to rent temporarily. I have explained it HERE. Tourism law says owners of residential properties cannot let out to holidaymakers unless they’ve registered under the Vivienda Vacacional scheme, but that only applies (at present) in wholly residential areas, not touristic ones, but owners in any area can rent short-term for other purposes, and rentals can be as short as one day on a temporada contract (see HERE) but must be for purposes other than holidays.

    Holidaymakers themselves are not the ones committing a crime, though, but the owners, as I explain above … see the question “Is it always the owner of the property who’s responsible for illegal letting … ?” in the first section on The Legal Situation above.

    As to how the authorities police it, they do random inspections, and inspect adverts and follow up in person on complexes, and they check on denuncias from members of the public. They have other means and methods, but they won’t disclose them.

  113. Hi Janet, last week I met with Marcos Cabrera to complete the annual tax assessment. While there we discussed a property that I own on a residential complex in Costa Adeje. At present it is let on a long term basis, but I plan to sell at the end of this year. While discussing with him the tax implications of selling, he mentioned that I also had the option to let it to holiday makers. He stated that as long as the tax authorities were informed of this and all taxes were paid, this was no longer illegal.
    On reading your site, (always my go-to place for info) I’m still a little confused. This apartment is on a residential complex, but surrounded by hotels so I’m sure it would be classed a tourist “area”.
    Is it as simple as he advised?
    Thanks as always for your advice.

  114. I met with Eva Rosa Cabrera, head of inpections, last week in Santa Cruz. She confirmed that holiday lets in residential complexes in tourist/mixed areas remain illegal. She doesn’t think the Law will change anytime soon. She stated that they are strengthening their team for combating illegal lets. The main problem they face is in identifying complexes listed on internet sites. She confirmed they are indeed continuing to act on denuncias that have been properly presented with solid supporting evidence.

  115. Author

    Thank you, Malcolm. That really was the only confirmation she could have given because the situation is very clear, as I’ve posted before now several times, and always after confirmation by qualified legal professionals. The situation for letting all types of property legally in all circumstances is HERE.

    As to the “law” changing, it isn’t and won’t, because the “law” is not the issue. Rather, it is the Vivienda Vacacional decree which is the point at issue, and this is already at consultation stage after a long redraft so it will happen at some point in the not too distant future, and at present it looks as if there will be an expansion of areas in which owners can let directly so that people with property in touristic or mixed areas will also be able to let privately for holidaymakers. Until the decree is published, though, we won’t know the precise detail and its original terms remain applicable, restricting private lets to residential areas under the conditions described in the link above.

    And I have also repeatedly stressed that denuncias for “normal” illegal letting are acted on and fines issued. People don’t see evidence of them any more because they’re no longer listed in the BOC … because now the inspectorate have to have more information about the owners they’re fining, including an address in the UK if applicable. This is what the Courts ruled the inspectors had to do a few years ago, and since the letters imposing the fines are now able to be delivered in all cases, there is no need to publish details in the BOC any more. The absence of the details in the BOC is not evidence, as some think, that fines are no longer being issued, but that the letters imposing them are actually being delivered and so there is no need for publication.

    It is interesting to note her comment, though, about the inspectorate acting on denuncias issued properly with supporting evidence. I often get the impression that people think that just by reporting an owner with an address the inspectors will race around to check out the situation, but people need to compile evidence as part of their denuncia. I keep telling people to take photos or some sort of video or audio record, and to keep a diary of incidents and a record of when there is illegal letting, involve president and administrator, etc. And then, hand the lot in with owner and property details as part of the denuncia.

  116. Author

    Super information, Malcolm, thank you so much!

  117. Yes indeed. She did say that they wanted addresses abroad too, if appropriate. In terms of suitable evidence, as an example, we looked at an airbnb advert complete with comments from holidaymakers that had stayed in the apartment. With evidence like this, the Inspectorate can call the “offender” into their office and confront them directly. However it would have been difficult for the Inspectors to find this example themselves as the advert doesn’t give a complex name. She did also make the point that things must rise above “personal vendetta”. Involving the Community Board is prudent. She said they would come down particularly hard where owners have succeeded in registering as a Vivienda Vacacional by being economical with the truth in the declaracion de responsable. In terms of presenting a denuncia she said it can be in letter form. This can then be submitted at your Town Hall where it will be stamped and sent on to her Department: Direccion General de Ordenacion y Promocion Turistica, Servicios de Accion Turistica, Inspeccion y Sanciones, Edificio de Usos Multiples 1, 1a Planta, Avenida de Anaga 35, Santa Cruz.

  118. Thanks very much for this clarification. It’s very unhelpful when respected taxation advisors are giving conflicting advice.

  119. Author

    Many people are confused even though the situation is actually very straightforward and clear to understand. The problem is often that it’s in some people’s interests to muddy the water and confuse the issue. The bottom line, though, is that this is not a “tax issue” but a legal one, so it’s lawyers rather than tax advisers who are the appropriate source of correct information, in this regard at least.

  120. Hi Janet we have an apartment across from ours that is making alot of noise this is also an iligal let as they dont use the onsite rental agency so every second day we have new nabours making alot of noise….I have complained about this alot in emails over the last year that poeple are making noise and are doing iligal holiday lets but they just do nothing about it..Can the president be held resposible for this or the admin?

  121. Author

    I’ve moved your question to the FAQ page on Illegal Letting. Please see the last two questions in the first section on the legal situation. Focus on the sole agent because it is their business that’s being undermined, and get the issue on the agenda of the next AGM.

  122. We didn’t know it was illegal to rent out our apartment, when we bought.

    Neither lawyer or rent estate agent told us, so we’re feeling a bit caught up as well. We have to do the renting to cover our expenses, and then hope we won’t get caught.

    Its a touristic complex on touristic ground, but with a relapsed license. Several agents are renting out in the complex, so no “sole agent” is available. Most owners are living there, and it is more or less a residential complex

    My big dilemma is: I really WANT to pay the income taxes – But i’m afraid getting caught if I “reveal” that we’re renting out. Do you have any good advice, Janet?

  123. Author

    I’m afraid I don’t really have any advice. You’re in a situation very many people are in where they’ve bought after being misled, misinformed or simply uninformed, and need the rental income they thought they could get legally to cover expenses, sometimes to pay a mortgage. The only things you can do is 1) seek to get your complex organized with other owners so that there is a registered on-site sole agent – as the law requires for touristic complexes – and 2) pay your taxes so at least you won’t be running the risk of getting into trouble with the Hacienda as well as Turismo. A small consolation is that the two organizations do not have a reputation of working together, and in fact have denied that information passes between them.

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