The Legal Hypocrisy Of Rentals

Adlai Stevenson was a great of American politics. He was the US ambassador to the UN for five years. His intellect and reasoning wouldn't go amiss in today's America.

That's by the by. Stevenson provided many a quote. One was: "A hypocrite is the kind of person who would cut down a redwood tree, then mount the stump and make a speech for conservation." Never let it be said that there isn't hypocrisy in politics. There's a great deal of it in Spain. Madrid is considering the chopping down of legislation designed in part to conserve but also to preserve - a society's well-being. If it does so, then it will speak of conservation: the status quo.

The additional hypocrisy is manifest. The Partido Popular has for years sought to prevent any liberalisation of the holiday rentals' market. It refused to do so in the Balearics. It has refused to do so elsewhere. The PP of national government in effect washed its hands of the looming boom in rentals by delegating legislation to the regional governments. A regional government, the Balearic government, has legislated. Now the PP is playing the constitution card. Conserve the status quo. It would wish to do so because it has been wholly inadequate in managing an issue that affects the whole country.

The Balearic rentals' legislation was probably always destined to find its way to some court or other. The Aptur rentals' association has yet to make its move, but it signalled before the passing of the legislation that it would be considering a legal challenge. There were two main reasons: conflicts with national law in respect of tenancy and of the so-called horizontal property regime (which at its most simplistic refers to living in apartments).

To be fair to Madrid, it does have a duty to ensure that regional legislation does not invade the competence of the state, if the state has superior competence for a particular matter. But exercising the right to challenge regional law and to take an appeal before the Constitutional Court can appear to be influenced by political thinking and differences. Bullfighting is a clear example.

The problem, constitutionally, that the Madrid government created with rentals is that it acknowledged regions' powers. Statutes of autonomy enable regions to determine policy with regard to tourism, and Madrid made clear that it was up to the regions to come up with their own rentals' laws. There was a total lack of foresight, not least because the government failed to modify its laws that could facilitate those of the regions. The Balearic government has asked Madrid to reform the tenancy act and to establish the principle of a minimum let. Madrid has vacillated and now seems stuck in neutral. Tourism chiefs - the minister and the secretary-of-state - have appeared to be working from different scripts. One says there won't be reform; the other says she'll be looking into it.

Madrid, interestingly, hasn't cited the two laws that Aptur has. It has referred to the law on the internal market, i.e. a nod in the direction of Brussels. While its potential appeal to the Constitutional Court has to do with specific articles in the Balearic legislation, it is this reference which hints that the court may - if it is asked to make a ruling - suspend the whole legislation. It would then have five months to decide whether or not to make the suspension permanent.

These legal niceties aside, one comes back to the apparent hypocrisy. The PP would be adopting a stance that it has long fought to avoid. The Balearic legislation, it could be argued, is over restrictive while at the same time hanging out something of a carrot of licences to come. But in principle it isn't so different to what the PP established under law.

The PP were accused - rightly enough - of favouring friends in the hotel industry. They are now lobbying Madrid to get a grip and establish some form of coherent national policy and law on rentals; just as the regions are also. The government has to take account of social developments - the saturation and now the protests. If it's in any doubt as to what is to blame for saturation, then it can ask Gabriel Escarrer of Meliá. Aptur may claim that rentals are not to blame for saturation, but it's difficult to disagree with Escarrer when he says that they are.

We now have the leader of the PP in the Balearics, Biel Company, saying that his party is open to a review of its stance on holiday rentals. Without giving an idea what this might mean, he has at least acknowledged market dynamics. The Bauzá government, of which he was a member, failed completely in recognising the realities.

Meantime, Madrid seems intent on conserving something to which the PP has been antipathetic. Yes there are market realities, but so there are also social realities.