A new ruling by the Supreme Court has supported the claims of the Canary Islands Vacation Rental Association (Ascav), extending the nullity of more articles of the Canary Islands Government's vacation rental decree. On this occasion, in addition to annulling the prohibition of vacation homes in tourist areas, as it had already done in a previous ruling, it pronounces on the bed & breakfast modality, among other issues, in a ruling against which no appeal is possible.
According to Ascav, the high court has annulled the article that prohibited vacation homes in tourist areas and in mixed residential tourist urbanizations "with harsh and forceful arguments," alleging that said prohibition "clearly infringes the freedom of enterprise and the freedom to provide services, limiting the tourist offer without sufficient justification."
"It makes no sense to try to exclude the offer of vacation homes from those areas where tourist activity should preferably be located. The only plausible explanation for this restriction is that it seeks to favor the offer of traditional tourist accommodation products mostly located in these tourist areas, thereby violating free competition in the provision of services," it states.
Bed & Breakfast and responsible declaration before the Cabildo
Likewise, the Supreme Court has annulled the article that prohibited the partial rental of homes or rental by rooms (bed & breakfast). In this regard, according to Ascav, the high court again argues "that the challenge to article 12.1, which requires vacation homes to be fully ceded to the client and not be rented by rooms, must prosper."
"Here, administrative intervention in the quality of the product is not justified, and the free offer of services is violated. There are no reasons to require a client who only wants to hire a room to stay, to assume the cost of renting the entire home, if the owner wishes to offer this service. The rule clearly seeks to prevent a product from being placed on the market that, due to its reduced price, competes with the hotel accommodation offer, which harms free competition," it points out.
Similarly, the Supreme Court has declared the nullity of article 13.3, "ratifying that the mere presentation of the responsible declaration to the corresponding Cabildo is sufficient to begin with the exercise of the activity."
"The challenge to article 13.3 (responsible declaration of the start of activity) must prosper due to infringement of article 71 bis of Law 30/1992, insofar as it deprives the responsible declaration of the virtuality of enabling the start of the activity from the same day of presentation. The precept provides that the delivery to the operator of the home of complaint forms, distinctive plaque, and inspection book will only be carried out after fifteen business days, within which period the Island Council must register b (the information on the activity of the operation of the vacation home in the General Tourist Registry of the Autonomous Community of the Canary Islands). As the start of the activity without the aforementioned documentation is grounds for sanction, de facto this regulation is distorting the effects of the responsible declaration and subjecting the start of the activity to prior administrative control," it states in this regard.
Ascav celebrates the sentence although "there are still many battles to fight"
In addition, as the Government of the Canary Islands did not appeal in cassation to the Supreme Court the article annulled by the Superior Court of Justice of the Canary Islands that obliged the vacation home to be dedicated to exclusively tourist use, "the nullity" of the same is consolidated, according to Ascav.
Ascav celebrates this "important" ruling of the Supreme Court, "knowing that there are still many battles to fight in defense of the owners of vacation homes in the Canary Islands with the different municipal ordinances announced and the elaboration of the new autonomous decree that will regulate vacation homes. As we have always done, we will continue with our hand extended as the sole representative of the sector in the Canary Islands to negotiate a fair regulation in accordance with our rights," concludes the association.
