picture of wittenberg building

Is a nursing home a home? Not according to the Council of State…

The Council of State recently made a decision in a case of principle on the question whether a nursing home can be considered a home. M2 Lawyers litigated on behalf of the owner and brought the case to a successful conclusion.

What was the case about?

The case was about the former Wittenberg nursing home in Amsterdam. The building is a national monument that was built in 1772 as a Luther’s Diaconie en Besteedelingenhuis (Luther’s Diaconate and Orphanage), intended for the accommodation and care of 40 orphans and 400 elderly men and women who could not provide for themselves. After the last orphans left in 1884, the building continued to serve as a hospital and retirement home for chronically ill and mentally disturbed elderly. From 1964 the building was used as a nursing home.

Marius Rijntjes and Ginio Beij acted on behalf of M2 Advocaten for the Diaconie who wants to realize short stay apartments in the building. The municipality was of the opinion that a residence permit was required for this, because the nursing home would have been lived in within the meaning of the Housing Act. The Diaconate did not think so.

What were the arguments?

One of the arguments put forward by the municipality was that the persons residing in the Wittenberg nursing home were registered there and resided permanently. According to the municipality, the fact that care was provided does not detract from the residential character.

M2 Advocaten argued among other things that care was the dominant element and that the two and four-person rooms in nursing home Wittenberg were geared to the provision of intensive care and not to running a household within the meaning of the Housing Act.

What was the procedure like?

In order to be able to submit the dispute to the court, the Diaconate applied for a housing withdrawal permit. This was rejected, after which the parties skipped the objection phase and submitted the matter directly to the court.

The District Court was of the opinion that the municipality was right to state that the Wittenberg nursing home had been used as residential accommodation. According to the Court, these were private rooms – because the beds in nursing home Wittenberg could be screened off with a curtain – that were occupied by single-person households using communal facilities (shower, toilet, etc.). Furthermore, the Court took into account that admission to a nursing home such as De Wittenberg generally means that someone lives there permanently and receives care.

The Diaconate did not agree with this judgment and lodged an appeal with the Administrative Jurisdiction Division of the Council of State. In these proceedings M2 Advocaten argued, among other things, that the beds in nursing home Wittenberg cannot be seen as confined spaces – they are not enclosed by walls – that can be inhabited by a household.

What was the outcome?

The Division followed the argument of M2 Advocaten and ruled that nursing home Wittenberg cannot be regarded as living quarters. In doing so, the Division considered that a room in which several (single) households reside cannot be regarded as residential accommodation within the meaning of the Housing Act. Residential accommodation within the meaning of the Housing Act refers to occupancy by a single household rather than several households.

Furthermore, the Division has ruled that a bed screened off by a curtain cannot be regarded as confined space. Although a curtain does offer some privacy by blocking the view, it does not close off a room in such a way that it can be occupied by a household according to common speech, according to the Division.

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

Marius Rijntjes (rijntjes@m2advocaten.nl)

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

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)