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)

Squatting: What are the rules?

Because of the group WE ARE HERE, the phenomenon of squatting has gained a lot of attention again after the squatting of a company building in Westpoort. When the owner came to assess the situation, he was denied access, which led to a lot of indignation.

But what about the legislation on squatting? In an article published in the magazine Huurrecht in Praktijk (HIP) I explain this and discuss developments in the field of squatting up to and including 2018.

The article discusses, among other things, that there are 3 ways to achieve eviction of squatters:

– Criminal eviction

The initiative lies with the Public Prosecutor’s Office. According to the policy rules of the Public Prosecution Service, a criminal eviction is announced, but not within 7 days after the announcement. The squatters can then contest the proportionality of the eviction in summary proceedings.

The advantage for the owner of this type of eviction is that the costs are for the State. Disadvantage is that the owner is dependent on the Public Prosecutor’s Office as to whether and when the eviction will take place.

– Civil law eviction

With this form, the owner himself starts summary proceedings against the squatters. The judge will then assess whether the interest of the squatters’ right of residence outweighs the interest of the owner to have the property at his disposal. Such an interest may be that the owner has concrete plans for the property in the short term.

Advantage for the owner of this type of eviction is that it is possible to determine when this means is being used, the disadvantage is the costs.

– Administrative eviction

In the case of administrative law evictions, squatting is also contrary to public law regulations. If, for example, the zoning plan does not have a residential purpose (but, for example, a business), then squatting is contrary to the zoning plan. The owner can then request enforcement. This was applied, for example, to the squatting of the ADM site in Amsterdam North.

Here again, the advantage for the owner is that the costs are, in principle, for the enforcing authority; As well, the disadvantage is again that the initiative does not lie with the owner.

Read more  

You can read more in this article about these types of evictions and many examples of the trade-off between the squatters’ rights and the interests of the owner. It also discusses case law on, among other things, the definition of squatting, the identity of the squatter and government liability for squatting.

Read the article here.

Any questions? Please contact us.

Advocaat Ginio Beij: beij@m2advocaten.nl

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

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

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

Shared housing: rented out according to the rules?

Attention! As of 1 January 2017, the municipality of Amsterdam has changed the rules for renting/renting out houses for multiple occupancy. An update will follow a.s.a.p. on our website.

Amsterdam has a shortage of houses in all categories, including starters. The wish is to live independently, but the reality for many is that this is not financially feasible. Let alone that it will ever be your turn for a social rental home. One solution is to share a house; together with others, you then rent a house in the private sector and share the (high) burden. Everyone is happy: starters have a place in the city they can call home, and landlords can ask a higher rent for their house (after all, three people with a job can pay more than one or two).

Not a problem, is it?

Maybe so, because there are actually rules about when a rental property may or may not be occupied by a number of adults. So when do you legally rent a house to a group of people?

The answer to this question is not as simple as it seems.

The municipality has also realised this through the results of the study ‘Woningdelen in Amsterdam’ (House sharing in Amsterdam) of February 2016. This study was commissioned by the municipality, in response to the memorandum ‘Room for house dividers’ of January 2014.

The municipality would like to facilitate as many different forms of housing in the city as possible, but of course without compromising the quality of life. In order to prevent excesses, rules have been drawn up that must be met in order for it to be allowed to share rental accommodation. On the one hand, these are rules for non-self-contained dwellings, such as student residences, in which a room is rented out. On the other hand, these are rules for independent residences that can be rented in various ways by a number of people.

So when is a house a student house, and must those rules be met, and when is it a house rented by a group? And when are there ‘abuses’ that should be enforced? The study of February 2016 shows that for almost all parties, tenants, landlords and enforcers, this is not unequivocal.

An example:

  1. Three adults live in a house with three bedrooms and a living room, each using their own bedroom. They pay the rent per person to the landlord.
    b. Three adults live in a house with three bedrooms and a living room, they each use their own bedroom. They pay the rent from a joint account to the landlord.
    c. Three adults live in a house with three bedrooms and a living room, they each use their own bedroom. They pay the rent to one of the three housemates, who pays the full amount to the landlord.

Although they may seem the same, there are legal differences in these situations and they may all fall under a different category. They must comply with different rules on a case-by-case basis in order to be legally rented and let.

These three situations could be seen as follows:

  1. Can be seen as a roomwise rental in a dwelling for which a residence permit is required. For further information, see https://www.amsterdam.nl/wonen-leefomgeving/wonen/bijzondere-situaties/woningdelen/wonen-per-kamer/.
    b. Can be seen as a living group renting a house. For a legal situation, a number of other conditions must also be met in this case, which can be found at https://www.amsterdam.nl/wonen-leefomgeving/wonen/bijzondere-situaties/woningdelen/wonen-per-kamer/.
    c. Can be seen as residence, and is legal if certain rules are met, such as can be found at https://www.amsterdam.nl/wonen-leefomgeving/wonen/bijzondere-situaties/woningdelen/inwonen/.

The differences are small in these situations and therefore there is little support for maintaining a relationship, because the feeling of legal inequality is encouraged. It is therefore possible that for this reason the municipality sometimes does not take action. One effect of enforcement could be that the residents are evicted. Something that the municipality does not aspire to, since the offence is generally not intentionally committed by the residents, nor by the landlord.

The real excesses, in which there are more adult tenants than rooms or in which fire safety is at stake, will of course be the subject of enforcement action.

As a result of the findings in the study, the municipality has decided to adjust part of the policy and create more clarity. It is the intention that this amended policy will come into force at the end of 2016. (See also https://www.amsterdam.nl/wonen-leefomgeving/wonen/bijzondere-situaties/woningdelen/)

If you are a landlord or tenant, and you have doubts whether you are legally (re)renting, do not hesitate to contact us.

Alicia Schoo
schoo@m2advocaten.nl