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)