The Government of the Canary Islands has dictated in this legislature six sanctions against the resort apartment owners who do not want to rent them, but use them as their house or second residencethe first six of a legal conflict derived from the Tourism Law of 2013 that hundreds of owners lose sleep over, particularly in Gran Canaria.
Sources from the Ministry of Tourism have informed EFE that these are files processed between the years 2020, 2021 and 2022, whose protagonists have received sanctions ranging from 2,253 to 9,015 euros for “very serious” infractions of the Canary Islands legislation, which requires since 2013 to dedicate these properties to tourist use established by the planning, even though the affected party invokes his right to property to try to give it a residential use.
Only those who demonstrate that they have been using their apartment residentially since before 2017 are released from this obligation, an exception that was introduced thinking of the serious problem that occurred on islands such as Gran Canaria, where the ownership of these holiday complexes has been very fragmented for decades and there are many owners who do not exploit their apartment, but use it as their first or second residence, even registering.
One of those penalized is a German retiree who is part of the Platform for People Affected by the Tourism Law that promotes the modification of that rule due to the legal uncertainty that they consider it generates and because they understand that it violates the right to private property, as indicated. to EFE its president, María Isabel Doreste.
This is the owner of an apartment in a tourist complex in Playa del Inglés, in the south of Gran Canaria, who has been fined 2,253 euros for giving it a residential use and has filed, through the Platform, a contentious administrative appeal against the Ministry, although Doreste has stated that they are willing to go to the Strasbourg Court, if necessary.
The residentialization controversy
On the opposite side of the conflict are businessmen in the tourism sector, whose employers insistently demand that the Canarian government apply the law and prevent the “residentialization” of vacation areas. They allege not only that it degrades the destination, but also that it is difficult to match the expectations of those who make an apartment their home, with the schedules and uses of those who come to the complex to spend a few days on vacation, leisure or partying.
The president of the platform of affected owners is emphatic in stating that the 2013 Canary Islands Tourism Renovation and Modernization Law – whose modification they are pursuing through a popular initiative – can be applied to tourist activity, but not to regulate the use of property, which is what has happened with this sanction.
An action that, as he has stated, has been the result of a complaint filed by the operator of the aforementioned apartment complex, which includes 112 housing units, of which 54 are not subject to exploitation, as is the case of the one belonging to the affected, whose situation as a “foreigner and retiree” they believe “has wanted to take advantage of”.
The community of owners, which is in charge of the operation, denounced in 2018 that the owner was making use of it, “violating” the provisions of article 23 of the 2013 Law, the Tourism inspection appeared in the complex and the Vice-Ministry of the Canary Islands Government area initiated the sanctioning file.
The owner presented unsuccessful allegations to the fine that was imposed on her; the Ministry argues that “the duty to abide by tourist use means that the property, regardless of its ownership, is used exclusively for tourist exploitation, without allowing any owner to use it for residential purposes”, as regulated in the Law of 2013 and in its subsequent regulation.
A covert expropriation?
The owner of the apartment maintains that residential use has occurred uninterruptedly for 38 years; denies that it has been used for any kind of exploitation and, furthermore, understands that it is a situation known to the Ministry since 1984 and to the Gran Canaria Tourist Board, since it does not appear among the accommodation units for tourist destinations in the successive declarations responsible that provides the administration.
The president of the Platform has influenced the defenselessness generated by the fact that the certificate of consolidation for residential use, which the San Bartolomé de Tirajana City Council must issue where appropriate, is “plagued with obstacles, snags and requirements, some surreal ” when requesting it.
In Doreste’s opinion, the Ministry is carrying out a “pseudo-expropriation” without legal coverage or general interest to justify it and, precisely, because of all the legal uncertainty that the tourism law of 2013 generates when it understands the platform, it has presented to the Parliament of the Canary Islands the popular legislative initiative, which includes the recommendations that the Ombudsman has made in this regard, has stressed.
The Ombudsman considers that the exploitation unit constitutes a requirement that is difficult to sustain due to its impact on the right to property and the freedom of enterprise of the affected individuals and deems its suppression advisable, as has already been done in the Balearic Islands.