Recently, the High Court of Justice of the Canary Islands, TSJC, has annulled several precepts of said decree, specifically arts. “3.2”, “12.1” “13.3” and the third sub-section of section IV of annex 2 of the aforementioned Decree. But this has been only “a battle”, since there are still four other contentious-administrative appeals pending before the same superior court, so it cannot be said, “WAR is won.” Nevertheless, it is true that it is a first step that proves the lack of consistency of the aforementioned decree, having violated such elementary principles, that the Court itself calls them “fallacious”.
Thus says the sentence in its “legal basis 3ª” that: sic: “The defendant administration tries to justify this exclusion in a different way – according to the lawyer in charge of formalizing the lawsuit – appealing that in tourist ground there can be no vacation homes, or that are regulated Other forms of tourist accommodation that are situated in specific territorial areas. “
But then, the Court dismantles the two arguments put forward by the Administration to justify its “nullity”. Thus we have it said in the sentence that, sic: “The first argument is only a fallacy, since the tourist zones are established on territories in which previously residential uses could have been implanted. The specialization of uses according to areas that seek to promote the different laws in tourism – law 6/2009, of May 6, law 2/2013, of May 29 – is nothing more than an aspiration, but it is far from being a reality”.
“The second argument cannot be better valued, since to say that tourism regulations require city hotels to be located in cities, or that rural tourism lodgings are to be found in the countryside, is an inconsistent argument. What happens is that different quality standards are demanded from the housing establishments that are found in the cities or in the countryside. There is no limitation on the establishment of tourist accommodation in certain areas”.
“The Canary Islands Tourism Law does not, therefore, enable the regulation to establish a form of tourist accommodation that can only be performed outside the tourist areas. What is contemplated is that certain housing offers are subject to less demanding standards because of being outside the tourist areas”.
“Thus, excluding the offer of holiday homes in tourist areas or mixed-use areas, precisely where they are intended to locate predominantly tourist uses, lacks legal coverage in the Canary Islands Tourism Law. “
On the other hand, the Decree regulation clearly infringes freedom of enterprise (Article 38 EC) and freedom to provide services (Directive 2006/123 / EC, of 12 December), limiting tourism supply without sufficient justification. Thus the sentence shows that: “It does not make any sense that the offer of holiday homes is to exclude from those areas where the tourist activity should be located preferentially. The only plausible explanation for this cut-off is that this is to favor the offer of traditional tourist accommodation products mostly implemented in these tourist areas, thereby violating free competition in the provision of services.
The same argument is used by the Court to annul the third sub-paragraph of section IV of Annex 2, by saying in the third Legal Submission, in fine, that: Sic: “For the same reason, the third sub-paragraph of section IV of the annex 2 “, which established that, sic: IV.- Extremes that must contain the Declaration Responsible for the beginning of the activity:
The person who signs it, SHALL DECLARE UNDER THEIR RESPONSIBILITY, at least the following points: … “3.- That the dwelling is not located in a tourist area, tourist complex or mixed residential residential development, in accordance with the definitions established in the Law 2/2013, of May 29, on the renewal and modernization of the Canary Islands “.
In the “legal basis 6”, of the High Court resolution, and in relation to the contested art.12.1 of the decree ( tourism management) requiring that holiday homes be fully ceded to the client, and can not be rented by rooms,(bed & breakfast), the Superior Court understands that: “sic: Here administrative intervention in the quality of the Product is not justified, and the free supply of services is violated. There is no reason to require a customer who only wants to hire a room to stay, to assume the cost of renting the entire house, if the owner wishes to offer this service.
The rule clearly seeks to prevent the placing on the market of a product that for its reduced price competes with the hotel accommodation offer, which damages free competition. ” Consequently, must be legal.
Finally, in the “legal base 7”, of the High Court resolution, referring to the “DECLARATION RESPONSIBLE FOR INITIATION OF ACTIVITY“,(in reference, to the solicitude to starting the holiday homes business) article 13.3 of the decree, the Court established that: sic: “The challenge to Article 13.3 (statement responsible for initiating the activity), Must thrive for infringement of article 71 bis of Law 30/1992, since it deprives the declaration responsible for the virtuality of enabling the start of the activity from the day of its presentation.
The provision stipulates that the delivery to the operator of the house of complaint sheets, plaque-badge and inspection book shall only be made after fifteen business days, within which period the Insular Council shall register “information on the exploitation activity of The holiday home in the General Tourist Registry of the Autonomous Community of the Canary Islands “. Since the beginning of the activity without this documentation is subject to punishment, de facto, this regulation is distorting effects of responsible statement and subjecting the beginning of the activity to prior administrative control. And hence the justification of the nullity of the precept.
Lastly, THE HIGH COURT DECISION: We annul Articles 3.2, 12.1 and 13.3, in so far as it subordinates the delivery of documentation necessary for the start of the activity to the inscription in a registry, and subsection third of section IV of annex 2 of Decree 113/2015, Of 22 of May, with imposition of the legal costs to the defendant Administration.
CONCLUSIONS OF THE FIRST SENTENCE:
1º.- ART. 3.2: Excluding the supply of holiday homes in tourist areas or mixed-use areas, where tourist uses are predominantly localized, it lacks legal coverage in the Canary Islands Tourism Law.
2 .- ART.12.1: There is no reason to require a client who only wants to hire a room to stay, assume the cost of leasing the entire home, if the owner wishes to offer this service
3º.- ART. 13.3: As the start of the activity without the mentioned documentation is reason for sanction, de facto this regulation is distorting the effects of the declaration responsible and subjecting the beginning of the activity to a previous administrative control.
Once won the first battle against the decree of the Government of the Canary Islands against the Decree, we have to be aware of the other four judgments that are yet to come and will be when the Government, in view of the overall result of the five sentences that are issued, will be when it will be in a position to make a New decree that regulates this economic and tourist activity, taking into account what the judges have determined and make it before, because there are many interests and stakeholders in this matter will be definitely regulated, so that those who want to rent their holiday homes can do it and leave behind the limbo in which they are today.
OBSERVATIONS FOR OWNERS OF TOURIST ACCOMMODATIONS, CONDOMINIUMS:
1º.– Notwithstanding the above, there is still an equivocal idea that the owners can rent their properties outside the “principle of unity of tourist management”, enshrined in art. 38 of the Law of Tourism of the Canary Islands when it establishes that: Sic: “Article 38.- Principle of operating unit:
- The tourist exploitation of the accommodation establishments, in its different modalities, must be carried out under the principle of unit of exploitation.
- For the purposes of this Law, a unit of exploitation is understood as subjecting a single enterprise to the tourist exploitation activity in each of the establishments, a unitary group of buildings, or a homogeneous part thereof, the units of which Accommodation must be destined in its entirety to the tourist activity to which they are linked, with the record of this link in the cases and terms provided for in the specific legislation on the subject.
- For the purposes of this article, the tourist operation comprises the development of all management, administration and commercial management activities of the provision of tourist accommodation services. “
2º .– IT IS ALSO AGREED AT THIS TIME, to remind all those who own an apartment or an accommodation unit in extrahotel tourist complexes that THEY ARE NOT INCLUDED IN THE CONTENT OF THIS SENTENCE, OR FOR THAT, IN THE DECREE THAT THE SAME REFER, BUT THEY ARE OBLIGED, which according to article 30 of Law 2/2013, of May 29, on the renewal and modernization of the Canary Islands, in section “c” establishes and is that: sic: “In no case If residential units are to be used for housing, their commercial and tourist nature prevailing over any other purpose. For these purposes residential use is presumed to exist when the contract referred to in the previous section grants a use reserve to co-owners for a period of more than six months a year, or when the actual use of the accommodation unit by The owners will exceed the indicated period “. That is, an owner of a housing unit or apartment, in an condominium resort, will not be able to reside in his property more than 6 months to the year, being, therefore, subject to the inspection of tourism and, consequently, to be sanctioned by this reason”.
In conclusion: “A OWNER OF A TOURIST ACCOMMODATION UNIT CAN NOT PERMANENTLY RESIDE YOUR APARTMENT (only 6 months a year), YOU CAN NOT RENT IT BY YOUR ACCOUNT, YOU HAVE TO DO IT ONLY THROUGH THE PERSON OR LEGAL PERSON OF THE Ownership of the holding in which his property is located “.
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SAENZ & ASSOCIATES, ATTORNEYS
Specialists in Tourism Law