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)

Rules Bed & Breakfast 2019 Amsterdam

Below you will find the most important rules for B & Bs that currently apply (2019) in Amsterdam. However, these rules remain in force even after January 1, 2020. The new rules from January 1, 2020 are an addition to these rules.

  • The manager of the B&B must be the main occupant and must therefore be registered in the Personal Records Database at the same address;
  • A B&B must be registered with the municipality;
  • Only 40% of the total area in the home may be used for the B&B;
  • The B&B has a maximum of 4 fixed sleeping places for guests;
  • The B&B itself may not form an independent space. If the B&B has its own shower, toilet and kitchen, it will be regarded as an independent space;
  • The main occupant can only operate the B&B. The management and, for example, the reception of guests may not be placed in the hands of a so-called key company.

If you have any questions about Bed & Breakfasts, you can contact us without obligation.

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)

 

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)

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

Can a VvE ban AirBnB or Short Stay?

A previous blog has already extensively discussed the requirements to start a bed-and-breakfast (read this blog here).

A situation that also regularly occurs is that within an apartment building properties are used for AirBnB or short stay. Especially during short stays this can be a nuisance. A group of tourists spending a long weekend in Amsterdam can usually be a bit noisier than the average resident. For example, we are aware of cases where the common areas (corridors, elevator, stairwell) have been damaged.

The question is whether the VvE can prevent such use and how. Most split certificates (based on the model regulations) state that the owner may only use the apartment according to the purpose stated in the deed. If the apartment’s purpose is living, then the question is whether renting for AirBnB or Short Stay is contrary to that purpose.

Case law shows that especially with regular short stay rentals this is contrary to the purpose of living. In several judgments it has been determined that living is a matter of ‘permanent residence’ and that a short stay does not fit in with this. See, for example, this judgment.

For an VVE, it is advisable to explicitly include the ban on renting out for AirBnB or Short Stay in the demerger deed or the internal regulations (the latter is easier to achieve in practice than amending the demerger deed). In this way, there is clarity for all apartment owners. The VVE often also has the possibility to impose fines in case of violation of this prohibition, in order for an extra means of pressure to prevent unwanted rentals. These fines must also be recorded.

However, it is not always the case that a rental on the grounds of AirBnB or short stay is in conflict with the purpose of living. If, for example, an apartment owner is abroad once for 3 months and rents out once for that period, this does not have to detract from the sustainable use as a home. In that case, such an occasional rental does not conflict with the purpose of living. An example of this in this ruling.

It must therefore always be taken into consideration whether a rental for short stay or AirBnB purposes is prohibited. Usually, this rental will be in conflict with the living purpose, so that the VVE can prohibit this use and even impose fines. If it is an occasional rental, it may be different in some cases, but that is an exceptional situation.

Does this situation look familiar to you or would you like to discuss the situation in your home office? Feel free to contact us.

Lawyer Ginio Beij (beij@m2advocaten.nl)