Airbnb landlords really can do that: unwanted guests? Judgments of German courts on the subject of apartments in residential complexes
Berlin, March 21, 2019 - Only in recent years has the topic really become more explosive. In view of the growing number of tourists and newly created brokerage portals on the Internet, more and more homeowners are deciding to rent their property to changing holiday guests instead of tenants when they are away or permanently. Often, however, the real estate is located in the middle of larger facilities that are used for residential purposes only.
The neighbors complain about the noise that arriving and departing holidaymakers cause, about long party nights and pollution. Courts must then decide what exactly is allowed for the owners and what can still be expected of the house residents and where the limits of the tolerable are exceeded. The Law and Tax Information Service of the LBS has collected some judgments on this topic in its extra edition.
A development plan, which provides for a juxtaposition of long-term apartments and one holiday apartment within a house, is, according to the Higher Administrative Court of Mecklenburg-Western Pomerania (file number 3 K 58/16) permissible. The special area was entitled "Living with accommodation". For the judges, the inclusion of just one apartment in a larger complex seemed suitable to limit the typical conflicts that can arise from changing guests.
As already mentioned, there are often disputes related to the construction of holiday homes. A prior official approval is required in accordance with the Berlin law on misappropriation of misuse. And this approval cannot be obtained through provisional legal protection, judged the Higher Administrative Court of Berlin-Brandenburg (file number 10 S 34.15). An applicant had attempted this, pointing out that renting as a holiday home was their only source of income. The judges nevertheless rejected the urgent request. It is not clear why a "normal" rental is not an option to cover their income.
In a general residential area, the use of real estate as vacation homes may violate the principle of consideration. In one case in Berlin-Pankow, the authorities found that 30 apartments were used to accommodate changing guests. Neighbors had complained about nighttime noise, accidental ringing and other disturbances. The Berlin-Brandenburg Administrative Court (file number 13 L 274.13) prohibited further intensive use in the form of holiday apartments. The owner had denied such a rental, but numerous pieces of evidence (fancy names on blades, multilingual information sheets, etc.) convinced the judges to the contrary.
Anyone who has received permission to sublet from their landlord should not interpret this in such a way that they can also accommodate holiday guests to any extent. A landlord had agreed that his tenant could sublet "without prior checking" because he himself only used the apartment irregularly. The tenant did not accept a warning for the holidaymakers who were accommodated instead. However, the Federal Court of Justice (file number VIII ZR 210/13) finally concluded that a subletting permit should not be interpreted as far.
If the owner of a property wants to prove his tenant the unauthorized use as a holiday home, then he must not gain access to the property for this purpose. With the help of the property manager, he got into the apartment and took photos of the evidence. The Berlin Regional Court (file number 67 S 20/18) saw this as a serious violation of the tenant's right to privacy. Behind this attack is the possible breach of duty due to a rental to holiday guests. The termination sought by the owner is ineffective.
A landlord who wants to do something about an unauthorized rental of his property to Airbnb guests should not necessarily choose a termination (without notice or proper) as the first measure. It makes more sense to first warn the tenant and point out that this type of use is not desired. This was pointed out by the Berlin district court (file number 67 S 154/16) to an owner. Although this type of unauthorized transfer of use constitutes an important reason for termination, the warning must first be given.
What actually happens when a rental to tourists within a WEG is not prohibited by the declaration of division or by other agreements? Then, in the opinion of the Federal Court of Justice (file number V ZR 72/09), this use may be permitted - namely "to holiday guests who change daily or weekly". The facility consisted of 92 apartments. In their judgment, however, the judges also noted that "especially in small systems or when usage increases" the character of a property can be changed. The community of owners can "effectively prevent such" only if they exclude it through a declaration of division or an agreement.
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