A ban on holiday rentals (AirBnB)?

Since October 1, 2017, there is a reporting obligation in Amsterdam for people who want to rent out their home through holiday rental sites such as AirBnB . In this way the municipality can check better whether landlords are complying with the rules. If the rental is not reported, a fine of € 6000 is imposed. A landlady successfully challenged this fine with the Council of State, but the ruling could have unpleasant consequences for holiday renters.

Case

Through AirBnB, a woman rents out her home for five nights to four American tourists, but does not report this to the municipality. The municipality then imposes a fine of € 6,000 for non-compliance with the reporting obligation. The woman challenges this fine in court, but her appeal is declared unfounded. The Council of State, on the other hand, considers that the fine was wrongly imposed on the lessor because the fine lacks a sound legal basis.

No legal basis

Why does the Council of State judge that there is no legal basis? Firstly, it is clear from case law that if a property is rented to tourists, even if it is a one-off, that this property is not available for permanent residence at that time and that there is therefore a withdrawal from the housing stock. Pursuant to the Housing Act (Huisvestingwet) (Article 21 (a)), it is prohibited to withdraw living space from the living space stock without a permit issued by the municipality if this housing space has been designated by the municipality. That is the case in Amsterdam.

Now the municipality has made a policy that makes it possible to withdraw a home without a permit. For example, they give holiday rental property an exemption for home withdrawal provided that they have met the conditions, such as the duty to report. The Council of State now judges that there is no legal basis for such an exemption. Only by introducing a permit system can housing withdrawal be legalized.

In short, now that the municipality was not allowed to allow the holiday rental through an exemption with a reporting obligation, the basis for the fine is therefore inadequate. For the landlord in question in itself a pleasant outcome, but it also means that the municipality has now received additional arguments to completely ban holiday rentals. In this respect, the judgment can therefore also have very negative consequences for holiday renters. The biggest direct consequence is that all holiday renters now strictly speaking act contrary to the law.

Possible consequences

At the moment it is not yet clear what exactly the municipality intends to do with the ruling. The alderman has states that the municipality will likely introduce a permit system to make holiday rental possible, but a tolerance construction may also suffice. In the case of a tolerance construction, holiday rentals remain prohibited, but the municipality can determine in which cases it actually acts and fines offenders.

The question is whether and for how long a tolerance structure can be kept. If interested parties request enforcement, the municipality has in principle a duty to enforce. In enforcement, it must be considered whether it is proportionate in view of the purpose of enforcement. Our estimate is that the tolerance policy will initially be maintained, but may not be sustainable in the long term.

In view of the above, the municipality will therefore welcome an upcoming change to the Housing Act. Currently there is already a bill to amend this law, which explicitly includes rules for holiday rentals. This provides the municipality with multiple instruments under the Housing Act to tackle unwanted holiday rentals. This also makes it possible to impose much larger fines for repeated offenses than is currently the case.

Finally, it is possible that the municipality decides to enforce a total ban or to formulate a policy where holiday rentals are not permitted in certain neighborhoods. It is doubtful whether a political majority can be found in Amsterdam for such severe restrictions. With this statement it seems to have become a possibility in any case.

What if you are now a holiday rental company?

If you have now received a fine for not complying with the reporting obligation, it is advisable to lodge an objection within six weeks of the fine being imposed. On the basis of the aforementioned judgment, your objection should be declared well-founded. For the near future, it is expected that the municipality will draw up new policy soon and will not impose any new fines until that time. A different assessment framework will then apply to fines that are subsequently imposed.

Incidentally, fines that are given for the withdrawal of a home will remain. Withdrawal of housing without a permit is not allowed. This can only be challenged if the facts are incorrect.

Finally, holiday-renters who have adhered to the rules under which the duty to report applies that they too are strictly in violation. Our estimate is that in that case it will not be enforced if the conditions that applied to the exemption are met (30-day rule, obligation to report, no more than 4 guests at once, etc.). Nevertheless, problems may arise if enforcement is requested (eg by neighbors).

The Amsterdam broadcaster AT5 asked Ginio Beij his views on developments following the decision of the State Council. You can see the fragment here .

 

If you have any questions regarding this decision or if you are looking for help in drawing up a notice of objection, please contact M2 Advocaten.

 

Lawyer Ginio Beij (beij@m2advocaten.nl)

Paralegal Arjan Ang (ang@m2advocaten.nl)

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