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)

 

 

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