Dont Panic

Hi Maria,

One of our Abogado colleagues is endeavouring to speak to the Lawyer from the Tourism Department at the Junta de Andalucia -so one way or another we'll both be clear on the advice to give clients.

Regards,

Mark - The Rights Group

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Oh yes, good!
My conversation has been with the lawyer here in Campo de Gibraltar delegation, it should be same one.

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The Autonomous Communities which have specific regulations on touristic apartments and holiday houses are:  

. Cataluña  
. Comunidad Valenciana   
.  Islas Baleares   
.  Murcia   
.  País Vasco   
.  Principado de Asturias  

The rest are still under a big deal of legal indetermination.

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 After some study of the case :The Autonomous Communities which already have administrative regulations on Touristic apartments and holiday houses are Cataluña,  Comunidad Valenciana,  Islas Baleares, Murcia, País Vasco and   Principado de Asturias .

For the rest of the Autonomous Communities,  ( individual units, not being part of a touristic apartment complex, with no catering services) just a notification to the Regional Government  ( under a Law from 1982: Royal Decree 2877/1982 of 15th in October 1982)  initially excludes you for any fine as there are no specific regulations on the characterisitics required. That is clearly stated on provision 17 of that Royal Decree which states that

" Are not considered as touristic apartments, but holiday houses, the individual units of apartments, bungalows, villas, houses and similars and, in general, any dwelling that regardless its furnishing conditions, equipment, services and installations, are offered for letting/renting with holiday or touristic purposes"

 That´s my opinion which has been formed mainly after some research and checkings of another legal proffesionals´ opinion, including those who  produce the database of doctrine, court decissions and legislation that we use in our Law Firm. Anyhow I do advise to seek for legal advise at every case.

I would transmit to you what the lawyer of the Andalusian Government also says to me though.

If you want you can correct the Daily Telegraph now ! :)

 

 

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Thanks Maria,

I appreciate that the licensing of apartment and holiday home may currently be limited to Catalunia. 

However, I am very keen to know how would the Andalucian authorities treat the owner of a property where the owner never occupies the property and the only reason to hold it is for rental use - long and short term. The rentals are achieved by a third party rental business which markets the property for occupation and manages the rental once a tenacy agreement is signed?

I am concerned that many owners are becoming commercial landlords and I fear that legislation will bite on their activities - if it doesn't already.

I understand from UK colleagues that the "Buy to let " market in the UK - where the properties are purchased solely as an investment and rented out to fund the costs of a mortgage - is licensed to some extent already. It's therefore not an alien concept but we all need to be able give clear guidance and solutions where possible to potentially confused purchasers in Spain. I am not sure we have yet done that.

Regards,

Mark - The Rights Group.

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Hi Maria,

I have been following your good work for a while. We have situation in a community Where only about 20% reside there full time. They don't like people renting out their properties, and when they meet a guest for the first time they ask them straight away if they have read the rules of the community. This puts guests off and has resulted in confrontation on issues that could have been better handled.

The point I want to make is that the article in Telegraph was forwarded to all members. For what reason I do not know. My inclination is that this is to Threaten those who rent out their properties with grassing them to the Authorities re Licensing

The development is not in Catalunya or the Islands

I would like to contact you re the rules of the community. 

Regards

 

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If you want to inform the Sunday Telegraph…..

 

The Autonomous Communities which have specific regulations for touristic apartments  ( apartamentos turísticos) and holiday houses ( viviendas vacacionales) are: Cataluña  Cataluña  
, Comunidad Valenciana  Comunidad Valenciana  
, Islas Baleares  Islas Baleares  
, Murcia  Murcia  
, País Vasco  País Vasco  
, y el Principado de Asturias  Principado de Asturias  
.  The rest of the Autonomus Communities just have general rules contained in their respective Tourism Acts.

 

A Royal Decree ( by Nacional Parliament) of 1982 (RD 2877/1982 of 15th in October of 1982 Real Decreto 2877/1982, de 15 de octubre, de Ordenación de Apartamentos Turísticos y de Viviendas Turísticas Vacacionales. ( Nacional Oficial Bulletin of 9th in November) , clarified the differences between touristic apartments and holiday houses, it is still in force:

 

According to that RD:

 

For touristc apartments, it is legally required the existence of  proper furnishing, installations, services and equipemnts for inmediate use and in order to their explotaition an administrative license is needed ( the marketing comany needs to obtain it before the initium of  touriistic explotaition). (Supreme Court Decission of 17th of  September 1993  STS Sala 3ª de 17 septiembre 1993   El TS estima el recurso de apelación interpuesto y declara no ajustada a derecho la sanción impuesta por incumplimiento de la legislación turística para la instalación de apartamentos turísticos, por considerar que en el supuesto litigioso no se probó de manera suficiente por la Administración si se trataba de apartamentos turísticos o viviendas turísticas vacacionales. El alcance de la presunción de certeza de las actas de los inspectores alcanza sólo a lo constatado, no a lo supuesto.

). The group of touristic apartmemts of every touristic development are all  marketed  by the same company. They must be sold as touristc apartments.

 

Holiday houses are unit of residencial houses, intended and sold  for  personal residencial  use but that, of course,  by title of ownership rights can be  rented out. These are regulated in provision 17 of same RD of 1982 and defined as individual units of apartments, bungalows, villas, houses and similars and , in general, any dwelling which, regardless its furnishing conditions, equipment, installations and services, are offered for renting with touristic or holiday purposes.   The only requirement for its opening and running is, according to provision 18 of the 1982RD, the communication to the Touristic Services of the Autonomous Community regarding its destination to touristic traffic.  So, just a legalised duplicated of that comunication (it is not  a license, just a communication and you are always allowed to rent) , is needed for a legal renting of your apartment. JUst some AUtonomous Communities ask, by force of Adminiustrative Regulations, that these holiday houses need to meet  detailed requirements: in Baleares, Murcia, Asturias and Pais Vasco)

 

In Andalucia, where I am lucky to live J, provision 45 of the General Tourism Act of  15th in December of 1999, specify the conditions for the use of  holiday houses ( both rural and urban) just say that they need to be furnished and have the necessary belongings for inmediate use and a reference to future administrative regulations for the specification of minimum requirements to be met by these.

 

Anyhow, my best advise is for you to get legal advise at every case.

 

 

 

 

 

 

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Maria

Thank you so much for that.

Is someone willing to inform the Daily Telepgraph journalist?!

In the first two paragraphs I can only see odd things instead of letters, in part - is that just my computer? Can someone enlighten me, if that is the case, please?

Emma

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Please let me know if you cannt read it and I will try to solve.
I will send the info to Justin, just in case!

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Hi Maria and Emma,

I have the same jumbled text -  Maria how was it uploaded?

Thanks Maria for the excellent contribution but at the risk of becoming boring it does not address the "Buy to let " investment purchase and rental mentioned in my post last night.

Regards,

Mark

 

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I wrote a DOC document and copied and pasted in the forum.

 Regarding buy to let: I would need to see the contracts signed in those "buy to let businesses" and will be able to ascertiang legal requirements and rights of every particular owner. It is always uncautious to give general answers as every case is different. Initially I would say that thay are under the holiday houses regime but.... again. I need to check documentation.

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I am using Wordpad now.

The Autonomous Communities which have specific regulations for touristic apartments  ( apartamentos turísticos) and holiday houses ( viviendas vacacionales) are: Cataluña , Comunidad Valenciana , Islas Baleares , Murcia , País Vasco , y el Principado de Asturias .  The rest of the Autonomus Communities just have general rules contained in their respective Tourism Acts.

A Royal Decree ( by Nacional Parliament) of 1982 (RD 2877/1982 of 15th in October of 1982 ( Nacional Oficial Bulletin of 9th in November) , clarified the differences between touristic apartments and holiday houses, it is still in force:

According to that RD:

For touristc apartments, it is legally required the existence of  proper furnishing, installations, services and equipemnts for inmediate use and in order to their explotaition an administrative license is needed ( the marketing comany needs to obtain it before the initium of  touriistic explotaition). (Supreme Court Decission of 17th of  September 1993 ). The group of touristic apartmemts of every touristic development are all  marketed  by the same company. They must be sold as touristc apartments.

Holiday houses are unit of residencial houses, intended and sold  for  personal residencial  use but that, of course,  by title of ownership rights can be  rented out. These are regulated in provision 17 of same RD of 1982 and defined as individual units of apartments, bungalows, villas, houses and similars and , in general, any dwelling which, regardless its furnishing conditions, equipment, installations and services, are offered for renting with touristic or holiday purposes.   The only requirement for its opening and running is, according to provision 18 of the 1982RD, the communication to the Touristic Services of the Autonomous Community regarding its destination to touristic traffic.  So, just a legalised duplicated of that comunication (it is not  a license, just a communication and you are always allowed to rent) , is needed for a legal renting of your apartment. JUst some AUtonomous Communities ask, by force of Adminiustrative Regulations, that these holiday houses need to meet  detailed requirements: in Baleares, Murcia, Asturias and Pais Vasco)

In Andalucia, where I am lucky to live J, provision 45 of the General Tourism Act of  15th in December of 1999, specify the conditions for the use of  holiday houses ( both rural and urban) just say that they need to be furnished and have the necessary belongings for inmediate use and a reference to future administrative regulations for the specification of minimum requirements to be met by these.

Anyhow, my best advise is for you to get legal advise at every case.
 

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The more important detail to consider is to whether your apartment is touristic or not. If it is, you are under stricter criteria and a company will market the apartment for you, with external signals of that housing category , but, of course, the building company must have been in charge of fulfilling those legal requirement, not you and when marketing them, it is the marketing company who needs to revise and meet those criteria. 

In the sales contract ( when you purchased the apartment) it should have been clear that it is touristic  and that you are under legal obligations according to that clasification) If it wasn´t, there can be a fraud involved. Of course these apartments are built on touristic floor. There have been sometimes  sold as residential being touristic ( fraud) . Also, prices should be lower that pure residential units.

Holiday houses are 100% residential,  ( built on residential floor)  and can be rented out, if that is effectively done more than once a year,  or are offered in tourism agencies ,  the simple communication to the Government  ( not an aplication for license) is needed. Anyhow the only requirement, in the most of the Autonomous Communities,  is to have enough furnitures and belonging for inmediate use. Some regions or Autonomous Communities (  those mentioned at the end of my previous post in this thread: Baleares, Murcia, Asturias and Pais Vasco) put  holiday houses under same strict criteria as touristic apartments.

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Does the taxman in the UK have a right to tax a second time if you are liable for 25% in Spain??

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Hi  MaggieB  . The tax man in the UK would be very interested in your income , as though you may have paid tax in Spain ( or other country ) he will think that he will get his little bit also, you may have no tax to pay BUT he wants all the details of your overseas property and HE then has a file on you for CGT also for other taxes that he is looking forward to at a later date. There  is a saying that goes like this .    The Tax Man is Waiting for you the day you are Born  and he still wants his Slice after you leave this World . It would be really great if we could avoid joining his club at the start but only a few people manage that. .( the very rich clever people)    This is only my view you might see it a different way , but its worth thinking about  before you tell all.    Regds  Rosi n    

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There is a Bilateral International Agreement between Spain and The United Kingdom by which these wealths coming for the sale of real estate can be taxed in the country where the asset is located. You will have  a credit ( deduction)  against the UK taxman.

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Can anyone give advice on the following problem that my brother is having.

He bought an apartment in Torrequebrada 4yrs ago. It was brand new, we all had a few holidays there the first year. As he and his wife were not retiring until last year he rented it out to lets say a Mr H.  This was via a third party who 'knew all about lettings' -  but has since disappeared without trace!  

After 9 months my brother asked Mr H when he intended moving out.  He was informed by Mr H that he intended to stay for "as long as he wished because he had the right to do so".  It seems under Spanish law anyone with a lease for 12months has the right to remain in the property for up to 5 years. My brother had no idea about this law or  he naturally would not have entered into this contract.

(Incidentally, Mr H and his wife are  operating a business out of the apartment-something do with arranging advertising in golf club brochures).

Mr H is now 7 months behind with the rent - he pays the odd month here and there.  When my brother went for legal advice, he was told that it woud be no use to take Mr H to court for the arrears, because he paid even one month at the 'eleventh hour', this would be seen by the court as an attempt by Mr H to pay some off some of the arrears and the case would not go forward. Of course there is further expense to be incurred by my brother to even get to that stage.

There is still a little over 2 years to go for Mr H to remain living there. My brother has now retired but as all his savings are in the property.  As Mr H is not paying any rent, my brother and his wide are unable to enjoy all their dreams and plans which after 40 years of working in UK ,have kept him going until now.

Hope I have explained it all clearly.

Christine  

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Hi Cyprus,

That's awful for your brother. When you say that the law in Spain is that a tenant on a 12 month lease is entitled to stay for 5 years, who was the contract signed via? I know you say that they have disappeared, but name and shame this third party and you might be surprised at who might know on the forum of their whereabouts. I'm presuming your brother took legal advice to discover this strange law. I really don't know much about Spanish lettings, but know that in UK if a tenant has signed for say 6 months tenant or owner can give 1 months notice to quit tenancy and that's all within the contract. Maybe he could consult a different solicitor for a second opinion maybe? The other thing is the running a business from the property. Is that within the contract and legal? Maybe a visit from the taxman could be an option?Stories like this really make my blood boil and people like this can't be allowed to get away with it. I wish I could be more help, but don't really know what else to suggest. However I'm sure there should be someone on the forum that could help. There is a resident solicitor Maria De Castro and also Smiley and Roberto are usually very helpful with problems. Good luck.

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Thank you Candy

The person who acted as agent is no longer in business, but the one year contract is still legal and binding and there is no doubt that it is  Spanish Law regarding the 5 year option. He hasmade enquires from other sources as you can imagine how upsetting it is for us all.

My brother has paid tax to the Spanish Gov on the rent he has received to date and when Mr H has paid he always writes the month it is for on the deposit slip to the bank. At present although he only paid one month last month on the deposit slip he wrote "September 2005".  So its all very strange.  Mr H by the way is  Spanish so he is well aware of his rights.

We are ot the sort of people who could be 'heavy handed' and in situations like this it probably would help - who knows.  Anyway, the business aspect - well.... where do you begin when we are in UK and everything is out of our hands. Plus the fact that there is no bottomless pot of money to be engaging professionals.  Its all very sad.

How do I contact the solicitor you mention?

Christine

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If it was a renting for dwelling ( it was not specified in the contract that it was for non residential purposes) I am afraid they have got a problem. But  we would need to see the wording of the contract to see if there is any legal  exit for his situation.

Best,

Maria

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