House sharing with two people possibly forbidden?

At the beginning of this year, the Council of State issued a remarkable ruling that holiday rentals (AirBnB) without a permit are prohibited under the Housing Act. Until then, holiday rentals had been allowed in a number of municipalities without a permit provided that the lessor met a number of conditions. As a result of the ruling, the municipality of The Hague has now banned holiday rentals altogether, and in Amsterdam it has since been banned in a number of neighbourhoods. In this blog, however, we will discuss certain forms of housing that may also be prohibited by this ruling without a permit.

The ruling

Before we discuss the possible effect of the ruling, we will first return to the essence of the ruling. The Council of State has confirmed that, pursuant to Section 21 under a Hw (Huisvestingswet = Housing Act), it is prohibited to withdraw residential property from its intended use without a permit issued by the municipality. To that extent, there is no news, but the Council also ruled that the Housing Act does not provide the authority to grant an exemption from that prohibition. In short, the policy of allowing holiday rentals without a permit under certain conditions, as was the case in Amsterdam, for example, does not comply with the law. The municipalities will therefore have to introduce a permit system to make holiday rentals possible again.

Municipalities allow house sharing with 2 persons

Therefore, it is not possible to withdraw residence without a permit, but Article 21 of the Hw mentions more activities that are prohibited. For example, pursuant to Section 21(c) of the Hw, it is also not permitted to convert or keep self-contained living accommodation into non-self-contained living accommodation. This conversion is, for example, the case if a home that is originally intended for one household, is being rented out to more than one household. Conversion is already subject to a permit requirement in Amsterdam, for example, but just as in the case of holiday rentals, it is permitted under certain conditions.

“A permit requirement does not apply to conversion due to occupancy by two persons. After all, the municipality of Amsterdam does not want to treat two friends who live together any differently than a couple”[1]

The municipality of Nijmegen implicitly states the same thing by only explicitly prohibiting conversion to more than two non-self-contained dwellings.[2] The municipality of Utrecht also only imposes a permit requirement in the event of conversion for the benefit of more than two persons.[3] The municipality of Rotterdam, on the other hand, takes an even more flexible attitude. It argues that a conversion permit is only required if there are 4 or more people living in a room.[4]

Despite the fact that these municipalities have the apparent aim of (restrictively) admitting house sharing without a permit, the Housing Act, if we follow the decision of the Council of State, offers no opportunity for this other than with a permit, just as in the case of holiday rentals.

Hospita (landlady) rental

In addition to room rental, hospita rental is also a form of housing. Hospita rental is a form of room rental in which the landlord also lives in the house. The housing ordinance of, for example, Nijmegen includes a special exception for hospita rentals.[5]

“The licensing requirement referred to in paragraph 1(b) of this Article does not apply to a situation with a hospess/hospita”.

But also in other municipalities hospita rental is allowed without a permit. However, again in view of the ruling of the Council of State, it seems to us that this is not possible under the Housing Act.

The concept of household

Whether a permit is required is crucial whether the dwelling is inhabited by more than one household. Although the concept of household is not defined in the Housing Act, it appears from the legislative history that the legislator assumes that in the case of a house being let by a room, the house as a whole no longer constitutes a separate dwelling. In addition, the Council of State has interpreted the term ‘household’ to mean a household if it can be assumed that there is an intention among the occupants to form a household for an indefinite period of time.[6]

The latter is not necessarily the case when, for example, a daughter who is studying shares a house with another fellow student, since there is usually no intention of letting her stay indefinitely. In short, strictly speaking, a conversion permit should also be applied for in this situation.

Enforcement

Finally, we come back to the current situation. As explained above, the consequence of the ruling of the Council of State that the sharing of housing by two (or more) persons each forming a separate household is thus prohibited and exemption without a permit is in fact not possible. Nevertheless, it is unlikely (and as far as we are concerned also undesirable) that municipalities would enforce the same if only because they see no need to do so for practical reasons. It therefore only becomes problematic when, for example, local residents request enforcement. In principle, municipalities are then obliged to enforce, which can lead to rather undesirable situations. Another option is, of course, to actually include all these situations in the permit system, but given the increasing bureaucracy, it would probably be even better if the legislator reviewed the Housing Act on this point. It will definitely be interesting to see in the coming period whether the line taken by the Council of State is actually consistently pursued.

Do you have any questions about this blog or would you like to know more about the (im)possibilities of house sharing? Please feel free to contact M2 advocaten.

Lawyer Ginio Beij (beij@m2advocaten.nl)

 

1] Explanatory notes Housing Ordinance Amsterdam 2020 p. 34

2] Housing Ordinance Municipality of Nijmegen 2020 Article 13 (1)

3] Housing ordinance Utrecht Region 2019, municipality of Utrecht article 3.1.2.

4] “Verordening toegang woningmarkt en samenstelling woningvoorraad 2019” (Rotterdam) article 3.2.2.

5] Housing Ordinance of the Municipality of Nijmegen 2020 Article 13 (2)

6] ABRvS 13 March 2013, ECLI:NL:RVS:2013:BZ3977

New rules for B & Bs in 2020 in Amsterdam

Amsterdam has experienced explosive growth in the number of bed & breakfasts ( B & Bs ) in recent years . Because so many B & Bs have been added, the municipality of Amsterdam has decided to tighten the rules for B & Bs in 2020. In this blog we look at these proposed rule changes for B & Bs . 

The changes listed below are not yet definitive. Nevertheless, it is very likely that most of these regulatory changes will be introduced from 1 January 2020. These rules are an addition to the existing rules. The existing rules can be found here . We list the most important changes from 1 January 2020 for you, followed by an explanation.

  • From now on a B&B requires a permit;
  • A maximum number of B & Bs will be determined per neighborhood ;
  • Only owners (ie no tenants) can operate a B&B from January 1, 2020 ( this change has been canceled. Tenants may also be eligible for a permit );
  • B&B holder must keep night stay during guest stay;
  • The B&B may never be offered for holiday rental;
  • A maximum of 61 m2 may be rented to guests (despite the size of the home);

 

Explanation changes

  • A permit is now required for a B&B

 Explanation : One of the most important changes is that a permit is now required for a B&B. Until now it has only been a duty to report. The permit requirement gives the municipality two important instruments for enforcing the rules. For example, when applying for a permit, it can assess whether the B&B meets the conditions and it also has the option of withdrawing a permit in the event of a violation.

  • A maximum number of B & Bs will be determined per neighborhood

 Explanation: Quotas are set for each neighborhood. If the number of applications is higher than the neighborhood quota, the permits will be issued by drawing lots. The permit is in principle issued for a period of five years. This also means that a permit holder in a popular neighborhood runs the risk of losing his permit after five years.

  • Only owners (ie no tenants) can operate a B&B from January 1, 2020 ( this change has been canceled )

 Explanation: Until now it was the case that tenants could also operate a B&B in their rented property. This is no longer permitted from 2020 and tenants will therefore not be eligible for a permit. The objective of the municipality for this measure is to prevent so-called ‘straw structures’. In some cases, landlords had thought that they could let a tenant run the B&B, who then had to transfer part of the income (or everything) to the landlord. The municipality’s main objection to this was that one lessor could in fact operate several B & Bs . It is still unclear whether the operator of the B&B must be 100% owner or whether 50% (or less) is sufficient.

  • Transitional arrangement

The previous measure is of course a tough one for renting B&B holders. A small compensation for these B&B holders is that there will be a transitional arrangement for a period of two years. In short, these renting B&B holders only have to definitively stop their activities from January 2022. To be eligible for this transitional arrangement, the B&B must have started before January 1, 2019. This means that a tenant who started a B&B in February 2019, for example, will have to discontinue his B&B from 1 January 2020.

This transitional arrangement also applies to owners who are raffled for a permit. If an owner started a B&B before January 1, 2019, this owner will receive a two-year respite. In contrast to the tenant, the owner will be able to (again) compete for a new draw for a permit.

  • The B&B may never be offered for holiday rental
  • It becomes mandatory for the manager to keep his own night stay during the guests’ stay

 Explanation: For many it is unclear what the difference is between holiday rental and B&B, not least because both are often offered via the same type of websites. In short, a holiday home is rented occasionally in the absence of the owner or tenant of the home. The original idea behind the term ‘holiday rental’ is that the owner or tenant himself is ‘on holiday’ during the period in which the property is rented. This is in contrast to the B&B, which basically rents all year round, whereby the B&B owner himself actively acts as host / hostess.

Because different rules apply to holiday rentals and B & B, the municipality of Amsterdam wanted to emphasize the distinction by stating that the owner of the B & B itself always stays in the home during the night. Furthermore, a B&B permit holder may never offer the relevant home for holiday rental. So if the B&B holder goes on holiday as a self-employed person, he may not offer the property for holiday rental.

  • A maximum of 61m2 may be rented to guests regardless of the size of the property ;

 Explanation: Until now, B&B owners were allowed to make a maximum of 40% of their housing surface available to their guests. This rule is maintained, but also the additional rule that a maximum of 61 m2 may be rented out to guests regardless of the size of the home. This rule may have costly consequences for existing larger B & Bs now that this means that the property will have to be classified differently. For the time being, it is unclear whether the municipality is willing to take into account existing larger B & Bs .

Conclusion

The new regulations for B & Bs are quite drastic now that existing B&B holders may have to stop their B&B from January 1, 2022 or even January 1, 2020. This month (October 2019), the municipality will announce whether the draft plans are actually being implemented or whether adjustments are still being made. It will also become more clear about the exact method of granting permits. We will keep you informed of the latest developments regarding B&B regulations.

Do you own a B&B or do you want to start one, please feel free to contact M2Lawyers.

Lawyer Ginio Beij (beij@m2advocaten.nl)

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)

Student nuisance: Municipality has to withdraw permission for a roof terrace

Recently we discussed another case in which the owner of a roof terrace successfully appealed against a decision of the municipality to remove the roof terrace. In this blog, however, we discuss a case in which someone successfully appealed against a permit granted by the municipality for a rooftop terrace by the neighbours.

Case

The owner of a property rents his building to students. For some time the students have been using the roof of the building as a roof terrace. However, according to the municipality’s zoning plan, the use of the roof as a terrace is not permitted. Following complaints from local residents, the municipality has informed the owner of the property that enforcement actions will be taken if the use of the roof as a terrace is continued.

The owner of the property then applied for an environmental permit in order to legalise its use. The application includes the construction of a fence on the roof of 185cm in height. The municipality decided to grant the environmental permit despite the fact that a roof terrace is not permitted according to the zoning plan. The planned fencing is also higher than permitted. A neighbour who overlooks the roof terrace from the back of his house, and who claims to experience serious noise nuisance from the students, appeals to the court after the municipality has previously declared his objections unfounded.

Conflict with zoning plan

Many people assume that if a permit has been granted in violation of the zoning plan, the permit was wrongly granted in that case. This assumption is often incorrect. After all, the municipality has the right to deviate from the zoning plan, but must take into account good spatial planning. In short, this means that the competent authority must ensure the maintenance of an acceptable living and residential climate.

In this case, the municipality stated that because it concerns an urban environment, local residents must tolerate some noise nuisance from each other. According to the municipality, the fact that the roof terrace has been reduced in size due to the placement of the fencing also contributes to the reduction of possible nuisance. The municipality also stated that, when granting a permit for a roof terrace, it does not want to make a distinction between use by a family or by students, since that there are also very quiet students.

Ruling

The court states that the municipality should take all the interests involved into account. The degree of noise nuisance is important in this respect. As the municipality indicates, it is plausible that the noise nuisance has decreased due to the placement of the fencing. As a result, fewer people can enter the roof terrace at the same time. However, this has not established that the remaining degree of noise nuisance should be considered acceptable. The court takes into account that the municipality did not take into account the fact that the nuisance providers in question are students with a higher chance of a deviating rhythm of life (night hours), and therefore nuisance.[1] According to the court, the municipality should have taken this into account in its decision. The court annulled the municipality’s decision.

Conclusion

Despite the court’s judgment, the environmental permit for the roof terrace has not yet been definitively dismissed. The municipality will have to take a new decision taking into account that the roof terrace will (mainly) be used by students. The municipality could also attach conditions to the use of the roof terrace by, for example, prohibiting the use of the terrace after a certain time. For local residents, the lack of conditions could therefore also be a means of challenging the municipality’s decision. In any case, it seems that municipalities will have to take more account of the presence of students in maintaining an acceptable residential and living climate in their policy.

Do you also suffer from noise nuisance from neighbours, for example, or do you disagree with an environmental permit granted to your neighbours? In that case you can contact M2 Advocaten without engagement.

Lawyer Ginio Beij (beij@m2advocaten.nl)

[1] Also see ECLI:RVS:2018:2276 en ECLI:NL:RVS:2012:BV3229

Roof terrace may remain despite lack of permit

An owner of a roof terrace had to remove her roof terrace from the municipality under penalty of a fine. She claimed, however, that certain commitments had been given to her so that she could now be confident that the roof terrace could remain in place. The judge agreed with her and so the principle of trust was successfully invoked. In this blog we will discuss this case and explicitly the principle of trust that seems to have been given a new interpretation with this judgment. 

Case study

An owner of a roof terrace is told by the municipality that she must remove her roof terrace soon. The municipality argues that a permit for the roof terrace has never been granted. The owner who bought the house with a roof terrace from the previous owner a few years earlier claims that the roof terrace has been there for 25 years without any problems. She claimed that during those 25 years there had been contact with municipal officials multiple times from which the (previous) owner could understand that no enforcement action would be taken due to the lack of the (environmental) permit. The owner says that she could now trust that this would not happen again. The municipality does not agree with this and maintains its position.

Ultimately, the case[1] ended up before the Council of State. In the end the Council of State ruled that although there was no reason for the owner to assume that no permit would be required or that she would receive a permit, she could assume, based on the contact moments of the former owners with the civil servants, that this would not be enforced. The Council of State also considers it important that the situation has lasted for 25 years and that it has not been maintained during that period. According to the Council of State, the interests of the municipality in enforcement subsequently do not outweigh the interests of the owner. The roof terrace may therefore remain.

Principle of trust

Many citizens believe that if something is promised to them by the government, they should be able to rely on it. This is also referred to in administrative law as the principle of trust. From that perspective, the judgment in the above case will not surprise many citizens. In practice, however, it turned out that it was far from easy for citizens to successfully invoke this principle. For example, a successful invocation of the principle of the protection of legitimate expectations previously required “that concrete and unambiguous undertakings attributable to the administrative body have been given by a competent third party, from which legal expectations can be derived”[2]. In short, this strict interpretation meant that, in practice, citizens could seldom rely successfully on the principle of the protection of legitimate expectations.

Gradually, the judiciary seems to have wanted to connect more to the citizens’ perspective.[3] In the discussed case, the Council of State sought advice from Advocate General Wattel of the State Council, whose advice was followed and thus leads to a new interpretation of the principle of the protection of legitimate expectations.  This line has also been followed in case law in other judgments.[4] This advice is a brief summary:

– More emphasis should be placed on how a statement or behaviour comes across to a well-minded citizen and less on what the administrative body meant by this;

– Less emphasis is placed on the precise division of powers. Previously, a civil servant could make certain promises, but if it turned out that he or she did not have the authority to make decisions, the citizen would have lost no matter what. This was particularly sour because it will often not be clear to most citizens who actually has decision-making authority. The citizen will have to make it plausible that he had reason to rely on this official. Bar staff responsible for providing general information will not be covered by this, but it is usually necessary to be able to rely on promises made by a construction inspector in connection with a construction project, even if this inspector does not have decision-making powers;

– If both previous steps have been successfully completed, a balancing of interests will then have to be carried out. This means that if a citizen is justified in relying on a promise from an administrative body, it will still be necessary to assess whether the interests of the citizen are in proportion to other interests, such as the public interest.

Conclusion

Citizens will be able to rely more successfully on the principle of trust in the future. The government will have to realise that commitments can more often lead to justified trust on the part of citizens. However, this does not mean that citizens will always get their way, even if they had reason to actually rely on government communications. Interests will always have to be weighed up, with other interests sometimes outweighing the interests of the citizen concerned. In that case, however, compensation may be possible. Fortunately for the owner of the roof terrace, there were no other important interests involved and the roof terrace was therefore allowed to remain.

Are you looking for legal advice in case of disputes with the government? Please feel free to contact M2 Advocaten.

Lawyer Ginio Beij (beij@m2advocaten.nl)

 

[1] ECLI:NL:RVS:2019:1694

[2] ECLI:NL:RVS:2015:1016 and ECLI:NL:RVS:2015:1871

[3] see e.g. ECLI:NL:RVS:2017:1946

[4] ECLI:NL:RVS:2019:1778 en ECLI:NL:RVS:2019:1838

30 km zone

INTRODUCTION OF 30-DAY RULE HOLIDAY RENTAL AMSTERDAM

It is a done deal, the board in Amsterdam has decided to reduce the maximum period for holiday rentals from 2019 to 30 days instead of 60 days as currently permitted. Amstelveen had already preceded Amsterdam in this respect, and has announced to tighten the rule to a maximum of 30 days this year. Apart from the fact that the political support for this rule change had grown considerably lately, some Amsterdam parties even argued for a complete ban on holiday rentals, alderman Laurens Ivens (Living) also felt strengthened by a recent ruling of the District Court of Amsterdam. Time to review this ruling.

Originally, the Amsterdam Municipal Executive wanted to limit the rental period to a maximum of 30 days per year by the end of 2016, but then saw too many legal objections to make the measure possible. However, a ruling on 5 December 2017 by the District Court of Amsterdam would have given the Municipal Executive sufficient confidence to implement the measure after all.

 

The case

A family rents out their home to tourists during the periods they stay abroad via the well-known AirBnB website. The members of the family are registered in the basic registration system of Amsterdam. In addition, during a check in the house, in addition to several tourists, various personal belongings of the family are found. There is therefore no doubt that the family actually has its main residence in the house in question and that the house is not systematically used only for holiday rentals.

However, what goes wrong in this case is that, at the time the inspection takes place, the house appears to have been rented out to more than four tourists. This despite the fact that holiday rentals is only allowed up to four persons, the strict maximum allowed according to the Amsterdam housing ordinance. This therefore gives rise to the imposition of a hefty fine of €13,500.00 for withdrawing the house from its residential use without a permit. But is this actually a case of eviction now that the family mainly stayed in the house themselves?

Withdrawal in the event of occasional letting as well

According to Article 21 of the Housing Act, it is in principle forbidden to use housing for anything other than housing. Giving a dwelling a purpose other than living in it is also referred to as housing withdrawal. A common example of housing withdrawal nowadays is holiday rentals. A defense that is often put forward is that the withdrawal has only taken place incidentally and should therefore not be included under the heading of withdrawal. The family in question also indicated that they only occasionally rented out the house to tourists.

The Amsterdam District Court does not accept this argument and considers the following:

“Case law of the Administrative Jurisdiction Division of the Council of State shows that it follows from the rental of a dwelling to and the use of a dwelling by tourists that it is not available for habitation and has therefore been withdrawn from its purpose of habitation, even in the case of incidental rentals”.

In short, the Amsterdam District Court follows two decisions of the Council of State[1] from which it can be deduced that:

  1. Letting to tourists in itself results in housing withdrawal, now that the house is not available for sustainable habitation at that time;
  2. The fact that this happens only incidentally, or even once only, does not change the above.

It may be clear that the Council of State uses a very strict interpretation of Article 21 of the Housing Act.

Housing withdrawal in case of occasional rental of main residence as well?

However, when we look at the underlying facts from the two judgments of the Council of State, one clear difference with the family case in question stands out. In the cases before the Council of State, there was in fact a landlord who did not actually have his main residence in the house. This is relevant as those parties had undoubtedly given the dwelling a purpose other than residence for a certain period of time. The Council of State considered this in its decision of 6 September 2017:

“All these observations indicate that the tenant did not live in the dwelling and that it was not available for habitation and was therefore withdrawn from the purpose of habitation”.

The Council of State seems to take into account that the (re)tenant in question did not live in the dwelling himself for at least some time, but only used the dwelling for holiday rentals during this period. It could be concluded from this that as long as the person who rents out the house to tourists continues to keep his main residence in the house, there is no question of housing withdrawal. In this view, an actual house does not essentially get a different destination by (occasionally) renting it out as a holiday home.

However, the Amsterdam court ruled differently. The aforementioned rulings lead the court to conclude that at the moment of (short-term) vacation rentals of a house there is always a change of function of the use and therefore a withdrawal of the house. The fact that the landlord keeps his main residence in the house does not change this:

“The court deduces from these judgments that – also in the case of permanent residence – during the periods that the house is let, there is talk of withdrawal of residence from the destination for habitation. After all, renting out the house to tourists constitutes a change in the function of the use. The dwelling could not be used for habitation during the rental period to tourists”.

The interpretation of the Court can be followed now that the Council of State in its judgments does not seem to offer room for a form of holiday rental of dwellings that does not fall within the scope of housing withdrawal. The fact that a dwelling is hardly ever used as a residence is an aggravating circumstance rather than the fact that the dwelling is mainly still lived in permanently is an attenuating circumstance.

 

30-day rule or prohibition?

Back to the intention of the Amsterdam Municipal Executive to reduce the number of permitted days of holiday rentals to 30. Now that the Amsterdam District Court is mainly basing its judgment on existing judgments of the Council of State, the value of the judgment as a novelty seems small. The only extra step that the Amsterdam court seems to make in this respect is the conclusion that even if the house is normally permanently occupied, there is still a case of withdrawal at the moment the house is made available for (short-term) holiday rentals.

Apparently there was still uncertainty in the Amsterdam municipality as to whether holiday rentals always fall under Article 21 of the Housing Act, the article that prohibits withdrawal in principle. With this last statement, it definitely has become even clearer. The other question that arises is therefore whether this has not opened the door to a total ban on holiday home rentals? After all, if holiday rentals of a dwelling can by definition be regarded as house withdrawals, the ban on house withdrawals in the Housing Act seems to offer an opportunity to do so.

Some are of the opinion that a complete ban on holiday rentals would violate property rights too much. AirBnB itself is of the opinion that the limitation of 60 to 30 days is already too much infringement of property rights. However, the government is in principle allowed to take measures that restrict an owner’s right of ownership. However, the government will have to demonstrate that it has a sufficient interest in doing so, whereby the interests of the owner must also be taken into account. In addition, the measure must be proportionate. Nevertheless, it is conceivable that if the problems surrounding holiday rentals increase, the municipality of Amsterdam will then have a more plausible interest in restricting these holiday rentals.

In view of the consensus in the Amsterdam municipal council (almost all parties are at least in favour of a restriction to 30 days) on the problems surrounding holiday rentals, there seems to be a realistic basis for the assumption that the holiday rentals in Amsterdam are problematic. It therefore seems not unlikely that the 30-day rule will stand up in court. In our opinion, a complete ban seems to be a step too far for the time being.

Ginio Beij

 

Do you have further questions about the 30-day rule, holiday rentals via AirBnB, for example, or have you been fined? Please feel free to contact us.

Lawyer Ginio Beij (beij@m2advocaten.nl)

 

1] ABRvS 14 October 2015, ECLI:NL:RVS:2015:3154 and ABRvS 6 September 2017, ECLI:NL:RVS:2017:2407