The Alegality Of Fraud: Rentals

Alegality. It's not a word that's particularly common in English, but it does exist and is generally used, as would be expected, in discussions of legal matters. It also crops in respect of international business and globalisation, and is sometimes spelled a-legality. Its meaning, and I quote from the Urban Dictionary's definition, is "an unambiguously wrong, disruptive and often deliberately committed act for which there is not yet a specific law making that act expressly illegal."

The Spanish word "alegalidad" is much more commonly used. It most certainly isn't confined to arcane analyses of law. It is applied to more mundane, everyday issues, and there is a great deal of it. Alegality tumbles out of many a newspaper column inch. One has to conclude, correctly, that there is an abundance of issues for which law has not determined if acts are expressly legal or illegal, regardless of any ambiguous or deliberate wrongdoing. The mere fact that alegality crops up as often as it does leads one to also conclude that the law is often inadequate, ill-defined or not applied.

There often isn't application. Legislation, be it national, regional, municipal, can sit on the books having been approved and passed by the relevant legislatures without coming into force. This legislative inactivity is most common at the municipal level. Many are the one-time approved ordinances that one hears of which only some time later (several years in some instance) are officially adopted. In the intervening period, and despite there perhaps being previous ordinance, the potential for alegality increases, because no one is quite sure of the legal security.

The definition above is thus not always applicable locally. It isn't necessarily the case that acts are "unambiguously wrong". Yes there may be some taking advantage of a situation, but it is the essential ambiguity of legality that allows alegality to flourish, with responsibilities and powers of competing legislative bodies, to say nothing of the hierarchy of the courts' system, adding more fertiliser.

An example of mundane Mallorcan alegality was the car parking near Es Trenc. Much of what has now emerged after the ludicrously protracted process to arrive at a law for the nature park had to do with car parking. The upshot of the legislation is that plots which were once used for parking will not be, and they had been closed down because of their alegality. They weren't illegal but nor were they legal. The alegality had existed for years.

I was reminded of this legal ambiguity when rummaging through an archive of old newspaper articles. It was one from August last year. It had been kept because of its headline. It was a quote which said that "our tourism is based on alegality, illegality and fraud in law". The person who made the quote was Dr Juan Franch Fluxá from the law department at the University of the Balearic Islands.

His specific references were as follows: the alegality is exemplified by the likes of party boats; illegality can be found in the renting of apartments to tourists; fraud exists with those who use the tenancy act to rent to tourists and do so via Airbnb. "An unacceptable absurdity," he concluded.

What was interesting about Dr Franch's quote was that he didn't refer to rentals in terms of alegality. Yet alegal is how they have often been described. As an example, the CCOO union spoke at the end of 2015 of holiday properties being rented in an alegal fashion amounting to 25% of the regulated (legal) offer. The use of alegal has therefore created its own ambiguity regarding holiday rentals. But another member of the university's law department, Avel-lí Blasco, has also been unequivocal. Tourist rental in apartment buildings is not "alegal", it is "illegal".

The point is that one wonders how rentals of this type ever acquired a description of alegal. They have been proscribed in Balearic law for years, and if they hadn't been, then why was the law being used to fine owners? Perhaps it has been the case that certain interests have wished to promulgate the notion of alegality.

The use of the tenancy act is a different matter. Dr Franch's strident assertion of a fraud in law is something with which one take issue. If owners abide strictly by the terms of the tenancy act - no publicising as tourist/holiday accommodation and no services - then how can there be fraud? But what he was getting at was owners who abuse the law and seek to conceal the real intent, whether the property is being offered on Airbnb or any other website.

Rather than fraud in law necessarily, the tenancy act has created the scope for alegality insofar as it is a loophole. The national government should, indeed must, amend the act. If it doesn't, then legislation, such as that envisaged in the Balearics, will always be open to abuse. And yes, fraud.