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)

Holiday rental (AirBnB): Judge moderates fines, minister wants to increase fines

Holiday home rentals in the Netherlands continue to be very busy, especially in Amsterdam. Last year, for example, an obligation to report was introduced and at the beginning of this year in Amsterdam the number of days which a house can be rented to tourists was reduced from 60 to 30 days per year. It is clear that politics are very much interested in reducing the holiday rentals of homes through tough measures. In this blog, however, we look at a recent ruling in which the court saw reason for moderation of the fine.  Finally, we also look at current political developments in this area.

Rules for holiday rental Amsterdam

Because Amsterdam wants to prevent the housing shortage in Amsterdam from increasing even further, it wants to ensure that homes are actually used as houses and are not used too much for holiday rentals to tourists. Vacation rentals are also referred to as house withdrawals and are in principle prohibited. In case of a violation a fine of €20.500,- can be imposed. Nevertheless, under certain conditions it is possible to (temporarily) rent out a house to tourists. These are the rules:

– The main resident must actually have their main residence in the house and be registered as such;

– The holiday rental may take place for a maximum of 60 days per year;

– Accommodation may not be granted to more than 4 persons;

– It is not a rental home of a housing corporation;

– The holiday rental must have been reported to the municipality.

Moderation penalty

In principle, if one of these conditions is not complied with, the municipality may impose a fine of €20,500. It is now the case that this fine can be mitigated under special circumstances. For example, in one case the fine was mitigated because the municipality could be held responsible (long-term construction work) for the fact that the owner in question could not rent out his house regularly. Slightly less special is the circumstance that the court found reason to split the fine in two because the property had only been let once and only limited financial benefit had been enjoyed. [1]

In a recent ruling, the court goes one step further. A landlord has rented out his house to six tourists. This means he does not meet the condition of a maximum of 4 guests. Therefore, the municipality has imposed a fine of €20,500 on him. Although the court indicates that it does not consider the high fines in general unreasonable in themselves, it determines that not meeting the requirement of a maximum of 4 tourists is not so serious that a fine of €20,500 is justified. Thus, there was no evidence of a peculiarity, but the court nevertheless ruled that this violation was less serious than, for example, in the case of violation of the maximum number of days. The court subsequently decided to set the fine at €8,000. In view of this rather remarkable judgment, it is very likely that the municipality will go for an appeal in this case.

Minister puts forward a proposal for higher fines

Also recently, Minister of Interior Affairs Ollongren’s bill to substantially increase fines for illegal holiday rentals has been adopted. According to this bill, it will be possible to impose a maximum fine of no less than €83,000 for illegal rentals. Such a fine would then have to be a “repeated violation”. The bill also contains a plan for an obligation to register. In Amsterdam there is already an obligation to report, but compliance will be simplified in the case of a national registration system.

Of course, it is not yet clear whether a bill will get through and what it will ultimately look like. Nevertheless, it is particularly interesting to see whether higher fines will also give the courts more reason to moderation in certain cases. In any case, it is striking that it appears cautiously from the jurisprudence that judges sometimes see reason to moderate fines where politicians want to punish even more severely. For the time being, it can in any case be assumed that it can be advantageous to challenge a municipal fine in court.

1] Rb. Amsterdam 7 June 2018 (not published)

Have you been fined for holiday rentals? Please feel free to contact us.

Lawyer Ginio Beij (beij@m2advocaten.nl)

 

 

breakfast in bed

Licensing requirement for Bed & Breakfasts in Amsterdam

The battle that the municipality of Amsterdam is waging against the unbridled growth in the supply of private holiday accommodation continues unabated. After it was announced earlier this year that holiday rentals via sites such as AirBnB and Booking.com will be reduced to a maximum of 30 days, the Bed & Breakfasts are now also being tackled. The intention is to introduce a licensing requirement for Bed & Breakfasts as of 1 January 2019. What are the consequences?

Wild growth of Bed & Breakfasts

It was to be expected. Since the city of Amsterdam has imposed increasingly strict regulations on vacation rentals on sites like Airbnb, Wimdu, and Booking.com, several vacation rentals have resorted to setting up B&Bs. While a B&B owner is only allowed to make a maximum of 40% of his property available, the owner is not limited to only 60 (and next year 30) rental days per year as in the case of regular vacation rentals. In short, if a holiday home owner runs a B&B, he can receive guests throughout the year. The fact that more and more holiday home owners are therefore using a B&B construction is a thorn in the side of the municipality now that its policy was precisely aimed at curbing holiday rentals.

Licensing obligation

In order to cope with the proliferation of B&Bs, the municipality now intends to make this permit compulsory. Until now, it was only necessary to apply with the intention of starting a B&B where it was checked whether they complied with the rules. If the obligation to obtain a permit becomes effective, this will change and the municipality has the possibility to refuse an applicant a permit. The municipality has announced that it will check the number of B&Bs already present in the area when the licence is granted. The municipality will set a maximum number of B&Bs for each area. If that number has already been reached, the permit will be refused. It is therefore expected that it will be very difficult to start another B&B in the centre of Amsterdam after 1 January 2019.

Consequences for existing Bed & Breakfasts

The municipality has announced that there will be a transitional arrangement for existing B&Bs, but the content of this transitional arrangement is not yet known. Operators of existing B&Bs will also have to apply for a permit, but it is possible that they will not be bound by the maximum permitted number per area. It is also possible that the municipality will base the maximum number of B&Bs per area for the city centre and surrounding areas on the current number. This has the advantage that no distinction needs to be made between the permits granted. However, it would limit the possibilities of reducing the current number of B&Bs if the municipality so wishes.

In either case, the obligation to obtain a permit would give the municipality an important weapon in the event that a B&B does not comply with the rules. After all, in addition to the fines that the municipality already regularly imposes in this sector, it will also have the opportunity to revoke the licence, which would then lead to the closure of the B&B. In short, the possible consequences for breaking the rules become even greater with the advent of the permit requirement.

Do you run your own Bed & Breakfast, or do you have a tenant who does, and do you have any questions? Please feel free to contact us.

 

Lawyer Ginio Beij (beij@m2advocaten.nl)

 

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

maarten van den heuvel

From the practice of M2 Advocaten: VvE law

It sometimes happens that a new owner presents himself within a HOA who has certain plans and requests permission for this. This was also the case in a case in which M2 Advocaten was involved.

This case involved a hotel owner who had bought a residential apartment on the first floor and wanted to add this floor to his adjacent hotel and exploit four hotel rooms. The HOA did not think this was a good plan and did not give permission to change the purpose of the apartment from “living” to “hotel/lodging”.

The owner did not agree and requested a replacement authorization from the Subdistrict Court to operate a hotel in the apartment. One of the arguments put forward by the owner was that it was unfair that another owner had been given (conditional) permission to rent out his salvage through Airbnb, while operation as a hotel was not allowed. The Subdistrict Court saw this differently and judged that operation as a hotel was not comparable to renting through Airbnb. The replacement authorization was not granted.

The owner did not give up and appealed. On behalf of the HOA, M2 Advocaten argued, among other things, that there are risks to a commercial party in the building and that – by extension – depreciation of the apartments would be possible. The Court of Appeal agreed. Another implication to a commercial operation is that the hotel may be transferred or changed in concept at any time. According to the Court of Appeal, this makes the apartments less attractive when they are sold – compared to apartments to which this uncertainty does not apply.

It was also argued on behalf of the HOA that the operation of four hotel rooms on the first floor cannot be equated with the rental of a storage room via Airbnb. Hotel operation is a permanent situation, in which the public-law destination is also converted into “hotel/lodging”, while rental through Airbnb is a temporary situation, which can be discontinued at any time by the HOA and in which the public-law destination remains “living”. This was also upheld by the Court. The replacement authorization was not granted.

It is good to know for HOA that a replacement authorisation can be granted if a requested authorisation has been refused without reasonable grounds. In this case, the HOA’s grounds for refusing a hotel were reasonable. In the case of a change of purpose, it is good to know that literature suggests that a change of purpose should only be possible if the change is 1) personal, 2) temporary and 3) recoverable. In this case, this was not the case for the desired hotel destination.

Would you like to know more? Feel free to contact us.

Marius Rijntjes (rijntjes@m2advocaten.nl)

Houses alongside water

Airbnb agreement with Amsterdam

Last Thursday, Airbnb agreed to modify its website. The update limits the number of days a property can be let per year. According to the City of Amsterdam, this agreement has made it more difficult to use properties as illegal hotels. With these kind of rules and agreements, the municipality wants to ensure that houses, which are used illegally for tourist rentals, will become available again for house hunters. The legal limit that a resident is allowed to rent out his house to tourists is 60 days a year in Amsterdam, as you can read in previous blog. In practice, however, many properties are available for longer rentals on the Airbnb website, and are also rented out more than those 60 days. This is already actively enforced by the municipality, and there are hefty fines for this violation.

As of January 1, 2017, hosts will be able to see in their Airbnb account how many days they are still allowed to rent, and will not be able to rent the property for the rest of the year if they passed the 60-day limit. [1][2]

Would you like to know more? Please feel free to contact us.

 

Ginio Beij (beij@m2advocaten.nl)

prohibition sign rolling suitcases

To be or not to Airbnb? Enforcement in Amsterdam

Previous blogs discussed what is enforced when it comes to B&B’s.

But what if you don’t want to start a B&B, but only want to rent out your house when you are on holiday? Through Airbnb, for example.

It is okay, if you follow two rules: no more than 60 days a year, and no more than 4 people can stay in your place. Is everyone following these rules? Definitely not. A 6-person quick-scan on the Airbnb website gives you more than enough choices of apartments/homes to choose from. Which is not allowed, because the maximum is 4 people. The City of Amsterdam wants Airbnb to make it impossible for a house to be rented out if they do not follow to the rules, so it is no longer possible to book for more than four people per house. The municipality also insists on compliance with the 60-day rule. So the municipality wants the website to automatically block a house as soon as it has been rented out for more than 60 days. In addition, the local authority wants Airbnb to provide the host’s address information to the local authority for more targeted monitoring. To date, Airbnb has no plans to provide that information, and Amsterdam is threatening to ban the platform in response.[1] The two parties are still discussing this. The municipality wants this data so that fewer violations are committed, making it easier for the municipality to track down offenders, and thus reducing the risk of nuisance from tourists.

How will this be enforced?

Detecting illegal activities is done in a number of ways: through reporting of neighbours or police, previous violations, mystery guests, and ‘scraping’ (by means of a computer program collecting data from a website)[2].  Sometimes this is done in an area-specific way: for example, if a neighbourhood receives a relatively large number of reports from the police and local residents, the entire neighbourhood is examined. Sometimes also in response to a report from a resident. Reporting by local residents is promoted from the municipality; a Summer Hotline was active last summer, and an online hotline Searchlight is still available.[3]

The municipality acknowledges that they do not have enough capacity to respond on all accusations from local residents, but promises to keep the reporters informed. The city centre, for example, has a total of 2.75 FTEs available for detecting and dealing with so-called illegal hotels, plus a couple indirectly from the Fire Safety department. [4]

Who is the offender?

In general, the law is executed in common cases where the property is only used for renting out to tourists and is not (or no longer) inhabited. This is then housing withdrawal and a violation of the Housing Act and the Regional Housing Ordinance. Or when a owner rent its house to too many tourists at the same time, which is not only a violation of the Housing Act and the Regional Housing Ordinance, but also a violation of fire safety.

A remarkable case has recently been heard by the District Court of Amsterdam. Father owns the floor on the ground floor, and used it as a pied-à-terre, so he is registered with another municipality. Daughter lives in the apartment above, and owns 1/100th of the pied-à-terre. Father is three to four days a week on the ground floor, the other days he rents it out to tourists. He arranges the Airbnb reservations, cleaning, and receives the rentals. Daughter receives the tourists and her number is given to them for questions; she receives no compensation for this. Unfortunately, this is not legal. It’s not allowed to rent a second home to tourists during periods when you’re not there. It is only allowed to keep a second home in Amsterdam if the second home is used by the tenant/owner him/herself, so you are never allowed to rent a second home to tourists in Amsterdam. On top of that, they rent out more than 60 days a year. The municipality therefore sees this as a withdrawal of the house from the housing market, for which they did not have a permit, and therefore a violation of the Housing Act and the Regional Housing Ordinance. Father will therefore receive the full fine of €12000. Daughter in the first instance as well. The Court ruled that this is not proportional; although she is complicit in the violation, she helps, but receives no compensation. The District Court is also of the opinion that if father had not rented the apartment, it would not have been plausible that she had committed the offence. She therefore received a reduced fine of €3000.[5]

Recently it has also been possible for the municipality to enforce the same rules in houseboats, but this was not possible because houseboats were subject to other laws and regulations.[6]

Airbnb at rental property and HOA

For rental properties, it may be that the contract states whether (sub) letting is allowed, or that permission must first be requested from the landlord. In some cases the landlord even has the right to dissolve the rental contract and to vacate the property.[7]

If the property belongs to an HOA, it may be regulated whether or not renting through Airbnb is allowed, or permission must be requested first. Sometimes, however, this is a gray area and short rentals are not explicitly prohibited, as this is a relatively new phenomenon. For additional information on this topic, read on in this blog.

Would you like to know more? Please feel free to contact us.

Lawyer Ginio Beij

Fine on illegal hotels in residences increased

Earlier in this blog we discussed when you, as a resident of Amsterdam, may or may not rent (parts of) a house to tourists.

Breaching the rules already resulted in a hefty fine of €13,500 under the Housing Act.

This fine has recently been increased to €20,500. In addition, in the event of a subsequent violation, a penalty can be imposed of another €50,000.

By increasing the fines, the municipality wants to make it even more unattractive to illegally rent out houses to tourists. This is to protect the housing stock in Amsterdam, where for years there has been an enormous shortage of (affordable) homes, and also to protect the living environment from possible nuisance or dangerous situations.

The municipality has also looked into the possibility of shortening holiday rentals from 60 to 30 days in the year, but this is not legally feasible at the moment.[1]

Would you like to know more? Please feel free to contact us.

Ginio Beij
beij@m2advocaten.nl