Updated 22 December: The Canarian Government’s tourism department has said it will revise its Vivienda Vacacional Decree to bring it into line with a ruling from the Supreme Court that it cannot ban the registration of private residential apartments for holiday lets in tourist areas. The judgment confirms a ruling to the same effect by the High Court in May. The newly redrafted decree was already in its consultative process, so how much longer this revision of the redraft will take is unclear, as is the conditions Turismo will think it appropriate to impose on owners who will now have to be allowed to let out in direct competition with the hoteliers.

Updated 22 June: Following on from its statement a month ago that it would analyse the regulation of holiday letting with the 31 municipalities in Tenerife, the Tenerife Cabildo has now announced a working day with the local authorities for 11 July. The theme will be the regulation of holiday rental, and Cabildo tourism chief Alberto Bernabé said that he believes the day will allow all the experts to look at and analyse all the possibilities offered by the Vivienda Vacacional decree.

That decree, as explained in the 21 May update below, establishes that private holiday rentals are only permitted in areas defined as wholly residential in municipal PGOs (council planning ordnance), with Ayuntamientos and Cabildos able to set exceptions to allow private letting of residential property in touristic areas if they deem it appropriate. The redrafted terms include a limit of two properties per owner to be eligible for the scheme, and set minimum requirements and standards for property and owners, as well as an obligation on owners to respect collective bargaining agreements achieved by workers in the tourism sector. Each property’s registration number must also appear in advertising.

Bernabé said that currently it appears around 11% of the touristic offer is already either registered under the scheme or in the process of registering. He stressed that the Cabildo would always prioritise the general interest of the island over particular interests when it came to policy proposals: “Tenerife’s tourism development model is based on quality, care of the natural environment, and tourist areas, and so holiday rental development must be compatible with this strategy that has led us to be world leaders”, he said.

Updated 22 May: The Tenerife Cabildo has said that it will analyse the regulation of holiday letting with the 31 municipalities in Tenerife. The announcement was made this morning by island tourism chief Alberto Bernabé, who explained that the Cabildo “will lead a debate about this type of tourism by convening a meeting before summer to go through all the possibilities presented by the draft of the decree presented yesterday by the Canarian Government”.

Bernabé said that he believed the common approach would help to fix criteria because a standard solution could not be applied to such a complex and dynamic type of tourism where each municipality had different needs.

To reiterate yesterday’s announcement, the redrafted decree regulates for holiday letting of privately-owned residential properties located in purely residential areas. To avoid the accusation of being rigid to provide favourable conditions for the hotel industry, however, the redrafted decree allows Cabildos and Ayuntamientos to set exceptions to the general ban on holiday letting of privately-owned residential properties located in touristic or mixed-touristic areas.

Bernabé said this morning that the meeting of Cabildo and municipalities will not only let the details of the regulation be comprehensively analysed but but also to check how this type of activity is regulated elsewhere. He emphasized that although it might be a istake to set a single criteria to such rentals, the Tenerife authorities must commit to the quality criteria

Updated 21 May: The Canarian Government has unveiled its redrafted Vivienda Vacacional decree and it does what might have been expected given announcements elsewhere in Spain recently, e.g. Valencia and Palma, Mallorca, namely confirm a complete ban on private holiday letting of residential properties in areas designated as touristic or mixed touristic-residential.

Canarian Government tourism minister Isaac Castellano said in the presentation this morning that Cabildos and Ayuntamientos will be able to establish exceptions to the ban within the framework of the decree but experience of the practice and its evolution in the Canaries justifies the ban. He insisted that the decree will help to achieve sustainable tourism development as well as improve access to affordable rental housing for residents, though that is a matter for departments other than Turismo.

The redrafted decree is therefore not only in line with the previous decree, but doubles down on it. It establishes that private holiday rentals are only permitted in areas defined as wholly residential in municipal PGOs (council planning ordnance). The key point, the Government will hope, as to why this redraft will be received differently by pressure groups like Ascav and the Monopolies Commission is that under the redrafted terms, Ayuntamientos and Cabildos can set exceptions to allow private letting of residential property in touristic areas if they deem it appropriate. Any insular or municipal authorities that do actually deem it appropriate will be able to develop the planning and define implementation standards themselves, though in accordance with the terms of the decree and tourism legislation generally. In this way the Government clearly hopes to undermine any argument that it is being unfairly rigid in favour of the hotel industry.

The scope for confusion among readers, tourists, travel agents and property owners should be clear. Each case’s validity will need to be established separately to see whether an exception has been made by an island Cabildo or local council, but Turismo says that the measures reflect the fact that that demand from those who want private holiday rentals is not equal or equally developed in all the islands or even all municipalities, so the solution must be flexible, and this can only be achieved through allowing Ayuntamientos and Cabildos to share the planning decisions.

Novelties in the redraft include a limit of properties per owner to be eligible for the VV scheme: if three or more properties are involved the owner is deemed a tourism intermediary business and therefore ineligible as a private owner. It also sets minimum requirements and standards (eg that owners must be able to be located at all times – 24 hours a day by telephone – by their tourists and the community in which the property is set) as well as a requirement for owners to respect collective bargaining agreements achieved by workers in the tourism sector. There will also be inter-administrative telematic collaboration between Cabildos to ensure effective administrative control and registration.

In terms of advertising, the channels through which a rental is marketed will be held responsible for accuracy and truthfulness, and the property’s inscription number in the Canaries’ general tourist register must be included in all adverts. Advertising channels will also be required to collaborate with public administrations and must withdraw adverts immediately if the Canarian authorities inform them that they are in a situation of illegality.

Minister Castellano explained that “the lines of work that have been followed in redrafting the decree have tried to adapt accommodation offers to the reality of the market by increasing the quality and competitivity of the destination, and to harmonize the supply of holiday rentals with the needs of the resident population and tourists, as well as to align the new uses with available resources, and to respect their proportional implantation and integration in the economic, cultural, social and environmental setting of each island, municipality and tourist area”.

The new degree must now go through the usual public information and opinion processes, including consultation with other Government departments, a process expected to take around six months. Any properties that are currently legally registered will automatically be incorporated into the registers. The decree does not apply in the so-called Green Islands (La Palma, La Gomera y El Hierro), which are independently classified for reasons of rural tourism.

Updated 22 February 2018: The Canarian Government gave a glimpse yesterday of the likely form of the redrafted Vivienda Vacacional as Turismo presented the proposed legislation to tourism sector chiefs. The draft sets the baseline that private holiday letting continues to be illegal in tourist (or mixed-tourist) areas, with the caveat “unless island Cabildos and Ayuntamientos establish otherwise through their local and regional laws.”  This will leave the final decision on whether to allow private letting of residential properties in touristic or mixed-tourist areas in the hands of councils and Cabildos, with the default option being that it is illegal.

If this becomes the final form of the decree, it is likely to be challenged by pro-letting groups like Ascav which is already calling it a fudge that promotes the status-quo, so “more of the same”. If they do continue their challenge, it remains to be seen whether the Courts will consider the Government’s devolution of powers to local and regional authorities as a sufficient loosening of the rules which have already been judged to be too restrictive given that it is hard to envisage Cabildo or Ayuntamientos allowing a free-for-all in the teeth of opposition from local tourism businesses.

New Canarian Government tourism minister Isaac Castellano says that the redraft of the decree is now entering its consultation phase with relevant bodies in the tourism sector to get “the best possible consensus” and “to reconcile residents’ needs with the development of a sustainable and quality tourism industry”.  The underlying principle, he said, was to give the municipal and insular authorities the tools they needed to modulate tourism rental in their areas given that they are the appropriate bodies to regulate the matter, and that this is an issue relating to a decree, not an actual law. Some will certainly consider it an issue relating to passing a hot political potato, rather than redrafting a decree, and there is still time for the proposed draft to be further amended, though presently it is being smiled on by tourism businesses and the hotel associations.

Updated 20 July 2017: A third judgment from the Canarian Supreme Court is again against the Canarian Government’s attempt to ban private holiday lets of residential apartments in tourist areas. The judgment ruled that the decree as it is infringes competition possibly in an attempt to give favourable treatment to the hotel sector. The rulings are piling up, and this one will no doubt be appealed along with the first two.

Updated 13 June: And the second judgment from the Canarian Supreme Court in response to Ascav’s appeal is the same as the first: the prohibition on private holiday lets of residential apartments in tourist areas will not wash. The regional Government is coming up against two EU principles which, in the Canaries are in conflict, namely that the Autonomous Community has the legal right to pass its own tourism legislation, however restrictive and protectionist, and the absolute requirement for freedom of commercial enterprise and competition. The Government has already confirmed that it will appeal the first ruling last month. No doubt the same will happen with this judgment too. Rulings to further challenges are still awaited. This could take a while. Meanwhile, the legal position is as I detail HERE.

Updated 18 May: The Canarian Government has announced that it will appeal the judgment issued last month against the Vivienda Vacacional decree. The court ruled that the decree had to expand the areas in which private letting of residential properties took place to include tourist areas, and for people to be allowed to rent individual rooms. The Government said that its appeal was based on the errors it believes the court made in its legal reasoning in respect of the legislation, and reminded that the regional authority was fully empowered to pass tourism legislation as it considered appropriate for its tourism model and to guarantee the sector’s development. Four more court judgments are expected for other similar actions, but the Government is not waiting, and has pre-empted them by announcing that it will appeal.

Updated 26 April: The Government was already in the final stages of redrafting its Vivienda Vacacional decree to comply with demands from the Monopolies Commission to allow private renting of residential apartments in touristic areas provided legitimate conditions were complied with, and now there will be extra pressure to finish with the first of several imminently expected judgments from the Canarian Supreme Court.

The ruling that has been issued is in respect of the action taken by FEVITUR (Federación Española de Asociaciones de Viviendas y Apartamentos Turísticos) and the Monopolies Commission, and confirms that several aspects of the existing VV decree will have to be changed. Perhaps the most significant of these is that of the areas within which letting is permitted: the Court said that it was so illogical to require tourists to stay in areas that were not touristic that the only conceivable reason for the restriction was to favour the hotel sector.

Another aspect of the existing decree that the Court has rejected is the requirement for all private holiday rentals to be of whole properties. Again, the Court says that this is only logical in the context of the Government seeking to favour the hotel sector, and that holidaymakers who want to rent just a room but more cheaply than a hotel would offer should not be prevented from doing so. If the Government accepts this, it will open up B&B as a formal and legitimate tourism model in the Canaries, something that has always been completely banned.

It is unlikely that the following judgments expected soon in response to other actions will result in different rulings, and the Government’s response will be interesting. They have the right of appeal, but there must surely come a point when they recognize that the weight of public interest and commercial fairness is against them … and that everyone sees through their claim to be protecting Canarian tourism rather than Canarian hoteliers.

Of course, there must and will still be protections in place for tourists and residents, and the final version of the Vivienda Vacacional will have to outline very clearly what these are. I suspect that the Government will use this argument, with considerable justice, to toughen up by some degrees the criteria for registration.

Updated 5 April 2017: The Canarian Government has announced that its redraft of the Vivienda Vacacional decree will be published in the near future. Tourism minister María Teresa Lorenzo said in Parliament today that the redrafted decree would allow owners to let residential properties to holidaymakers in touristic areas but with conditions attached, most notably related to quality and security being on a par with that offered by existing tourism businesses so as not to endanger the islands’ tourism model.

The decree in its current form allows private letting to holidaymakers of residential property in non-touristic areas (see HERE for detail), but as reported below, the Government has spent the last couple of years redrafting it after the Comisión Nacional de los Mercados y la Competencia (CNMC), which we would know as the Monopolies Commission, said that it “restricted competition and created barriers to the market, thereby unjustly privileging tourism businesses and disadvantaging users”.

The minister conceded that there was no form of regulation that would satisfy all sides given the conflicts of interest involved, and said that the Government was attempting to allow “the general interest” to guide legislation. The acknowledgement comes after a question was raised in Parliament about the lack of property to rent, particularly at a reasonable price, in residential areas, which the questioner (Rosa Bella Cabrera Noda, PSOE) said was the result of forcing tourists into these areas, and thus making rental prices soar and residential availability decrease. Cabrera Noda said that the redrafted decree must now be a priority so as to allow other owners to register for a Vivienda Vacacional plaque to release the pressure on these areas.

The Government has not fixed a date for the redrafted decree to be published, but we now know two things: it is not too far away, and it will allow registration under the Vivienda Vacacional scheme for private owners in areas with a touristic designation to let their residential properties to holidaymakers, though under conditions which 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.

Updated 23 September 2015: As expected, and now confirmed, the Canarian Parliament has approved the motion for the regional Government to paralyse the application of its Vivienda Vacacional decree, and to redraft it. It will now work on a new text that seeks to incorporate both criticisms from the CNMC as well as resistance to looser legislation from Ashotel. In the meantime, VV registrations continue under the terms of the decree as current, though with no inspections nor fines for any violations.

The resolution the Government will have to find in its redraft must satisfythe hoteliers, lobbying groups like Ascav, owners who want to let their residential properties to holidaymakers, and residents who oppose this fiercely. I remember a philosophy colleague once talking about squaring the circle. I’m not sure I ever understood the concept … until now.

Updated 22 September: The debate in Parliament is to start today, and expected to last at least throughout tomorrow. Already the hoteliers are putting on pressure saying that any softening of the decree will undermine not only the decree but also the main legislation because it would essentially allow for a free-for-all, as well as endangering employment in the only legitimate tourism sector that creates jobs in the hundreds of thousands. It will be interesting to see how the Canarian Government manages to accomodate everyone in a situation where trying to please all sides has resulted in quite the opposite!

Original post 18 September 2015: The Comisión Nacional de los Mercados y la Competencia (CNMC), which we would know as the Monopolies Commission, has called for the Canarian Government to modify its Vivienda Vacacional decree (see HERE). In a press release issued this morning, the CNMC said that some clauses of the decree must either be removed or altered because in their current form they restrict competition and create barriers to the market, thereby unjustly privileging tourism businesses and disadvantaging users.

The CNMC says that it notified the Canarian Government in July that these would have to be changed, and hoped that its suggestions would be taken on board, thereby avoiding appeals against the decree in the Courts. It reminded the Government that it is a legitimate body which has the power to intervene in any such respects where competition is compromised.

The Commission is calling for two main changes, namely to allow private owners of residential properties in touristic areas to be able to register under the VV system because excluding them privileges hoteliers and other formal tourism businesses; and to allow private owners of residential properties registered under the VV system to be able to rent out a room to holidaymakers rather than requiring the whole property to be rented out. The other changes being demanded are to reduce the bureaucracy involved in declarations and compliance, both of which increase the cost to owners to enter the tourism market.

It remains now to see how the Canarian Government responds to this. They have to accept these recommendations or else face legal challenge from the CNMC in the Canarian High Court.

 

source https://www.janetanscombe.com/news/monopolies-commission-calls-on-canarian-government-to-remove-restrictions-in-vivienda-vacacional-decree.html

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