The holiday rentals zoning just seems to get more confusing.

07-02-2017Toni Escobar

On the map for holiday rentals zoning that the Council of Majorca presented in January, most of the island was coloured either green or yellow. The green, predominantly in the Tramuntana Mountains, represents "protected rustic land". The yellow is for "common rustic land". Most of Majorca, with the exception of the Tramuntana, is dominated by the yellow.

The Council's intention was to permit holiday rentals on this land, subject to certain limitations. For stand-alone properties, there were to be no restrictions; rentals could be 365 days a year. Apartments were to be subject to the sixty-day rule: a maximum of sixty days per annum in an owner's main place of residence.

The zoning plan was always going to have to be run by the Balearic Environment Commission, a government body which is headed - as is the environment ministry - by Més. A technical sub-committee of this commission has in broad terms accepted the zoning. However, where common rustic land is concerned, greater restrictions appear to be on the cards.

The commission, it would appear, has proposed that there be no holiday rentals on this land. This would give it the same status as the protected rustic land. The Council of Majorca has responded by making suggestions which are as yet unknown. This is because it has not published its PIAT, plan for intervention in tourism areas, which is expected to finally be given "initial" approval next month. Regulations related to common rustic land are therefore to be set out in this plan.

Other parts of the map have been considered by the commission. The Council had proposed that the interior "saturated" places, which are now referred to as "vulnerable", could only have rentals under the 60-day rule. The commission wasn't wanting any new permissions for rentals in these places, but it seems to now accept that there will be and that the PIAT will set in stone the period of the year for these sixty days.

The Council will also be taking account of the commission's view in respect of coastal areas which the Council had not deemed to be "saturated". This applies to mostly all resorts, the exceptions being Magalluf, Palmanova, Paguera, Santa Ponsa and Llucmajor's part of Arenal*. Therefore, the Council's zoning was proposing 365 days a year rentals of any type of property. The commission has asked for a rethink as to which resorts are saturated, for which the 60-day rule applies.

It has always been understood that the zoning could be subject to change as and when the PIAT is produced. This plan is expected to indicate how many holiday rentals places (beds) there can be in any particular municipality or parts of a municipality. Because it hasn't yet appeared, the Council intends seeking a partial suspension of the granting of new rentals licences until the PIAT is approved. The moratorium on the issuing of new licences, which was a Balearic tourism ministry decision, is set to be lifted by the middle of July. The implication is that there could be a further delay in issuing licences because of this suspension.

* Llucmajor town hall has proposed that there are no apartment holiday rentals in Arenal. For Playa de Muro, not deemed to be saturated, Muro town hall has made the same proposal; it would in fact apply to the whole of the municipality.
 
** As ever, it should be stressed that the above applies to new holiday rental licence applications. Properties which were previously registered with the tourism ministry are unaffected.

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RBMM / Hace 7 months

If you think you have arguments that are good enough to give you a chance to change the situation, then go ahead. The only loss you may get is the time you spent to write a complaint. We wouldn't need courts if laws were easy to interpret.

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Jens / Hace 7 months

Yes, I agree that it is difficult to anticipate the outcome of a court procedure :-) Therefore I am just complaining to the CNMC. Anyhow, I would like to point out that I am not arguing that the Balearic may not regulate holiday rentals. I think they should and that the regulation is needed. And most amendments to the tourism law may very well be based on legitimate public interest. I am however arguing that the requirement that the relevant property needs to be the owner’s primary residence is unlawful. The purpose of the service directive is, among other, to ensure non-discrimination for providing services and equal treatment. EU has therefore adopted rules to ensure a level playing field within the EU/EEA area. I am not against restrictions on holiday rental, but I am against only giving residents the right to obtain a license. It is tempting for politicians to grant preferential treatment to their own voters (residents) on the expense of people without voting rights (the non-residents). I also think that is an acknowledgement that is the reasoning behind a lot of similar non-discriminatory EU law.

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RBMM / Hace 7 months

An objective of the EU is to achieve uniformity in laws of member states to facilitate trade, but the objective is also to protect its citizens. You/Jens write that exceptions ”must be both necessary and proportionate to be legal under the services directive”, which is my belief as well. What is necessary and proportionate has to be interpreted, and I think the Balearic government has a good chance to win in a court. Statistics are on their side. My point is that despite the overall aim to harmonize the internal market, there are still a number of exceptions when member states can provide good arguments for them. The laws in most countries were not written for innovative business models such as Airbnb and similar companies in several industries. That makes it harder to interpret what fair competition is. I don’t say that you Jens are wrong, but I still think that the Balearic government would be able to provide stronger arguments for their decisions than you would in a court setting.

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Jens / Hace 7 months

Interesting point regarding Denmark. I did a search of it. This restriction dates back to the mid-1960s, when Denmark was not yet in the EU and there were fears that foreigners might buy holiday properties on the coast for speculative purposes. To prevent speculation, non-residents were not allowed to own vacation homes that are kept unoccupied most of the year. Upon accession in 1973, Denmark was allowed to keep this restriction. This means that this is a special arrangement agreed between EU and Denmark when Denmark became an EU member, while other countries (including Spain) do not have this exception and will have to adhere to the principle of free movement of capital and services. Regarding the housing problems in the Balearics as opposed to the Canaries and Madrid I would argue that this is not relevant in respect of the requirement for the relevant property being the owner’s primary residence. One substantial point is that such a requirement must be both necessary and proportionate to be legal under the services directive. In my opinion it is not. The Balearic government has put in place an overwhelming number of requirements. One is the zoning which limits the available places in each community to a certain number. Another is the limit of 60 days rental period in each year in some zones. These ensure the purposes of the amendment to the tourism act is fulfilled without requiring that the relevant property is the owner’s primary residence.

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RBMM / Hace 7 months

Jens, you never know until you try. Denmark discriminates against foreigners interested to buy property in Denmark, which makes it more or less impossible to buy a property if you haven't lived in Denmark for 5 years. So it is possible to make differences between residents and non-residents. The housing problems are worse in the Baleares than in the Canary Islands and Madrid.

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Jens / Hace 7 months

RBMM, thank you for the interesting link. However, I believe there is a distinction between taxation and the limitation on the right to provide services (and specifically dicrimination of non-residents EU/EEA citizens in that regard). A complain to the EU Commission may also be an alternative, but the CNMC is the Spanish Competition Authorities which has taken aggressive legal action (and won) against holiday rental legislation both in the Canaries and Madrid.

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RBMM / Hace 7 months

France also distinguishes between permanent home owners and second home owners (https://www.thelocal.fr/20180221/own-a-second-holiday-home-in-france-prepare-to-pay-more-tax). So I doubt that the EU will do anything about such complaints that Jens suggest.

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Jens / Hace 7 months

Some zones require that the relevant property must be the owner’s primary residence to qualify for a rental license. The requirement has been justified by the need for extra income for residents to make payments on their mortgages. In my opinion this may be an infringement of EU law. For those affected you may send a complaint to the email address of the Spanish Competition Authorities: info@cnmc.es A text may be: “Dear Sirs, The Balearic authorities has divided Mallorca in different zones for granting holiday rental licences. In some of the zones there is a requirement that the relevant property must be the owner’s primary residence to qualify for a rental license. I would like to make a complaint in respect of this requirement. In my opinion it is a breach of the right to provide services under article 16 in the services directive. Best regards,….” It is probably little chance that the CNMC will take legal action against this requirement, but on the other hand it is little to lose by making a complaint.

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Andy Rawson / Hace 7 months

Which translates to 'We Do Not Want Tourists'

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John / Hace 7 months

@Ged. It's only being so cheerful that keeps you going.....

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