Misuse of the apartment

In order to protect housing, municipalities may, on the basis of Art. 1 of the Bavarian Law on the Exploitation of Degradation (ZwEWG), determine for areas in which the adequate supply of the population with rental housing is particularly endangered under appropriate statutes (...) that housing only works with may be used for purposes other than residential purposes (...). "

The Bavarian capital of Munich has made use of this possibility for some time now and for the first time in the year 2013 issued a so-called "Zweckentfremdungssatzung" (ZeS). The enforcement of the same was initially difficult. On the one hand, given the large supply of short-term rental apartments on the Internet, the responsible social services department simply did not have enough staff to carry out effective controls. On the other hand, the then existing legal regulations, and above all the initially maximum amount of fines of "only" 50.000, - €, were not sufficient to discourage particularly short-term commercial tenants.

After interim readjustment both by the Bavarian legislature, as well as by the city of Munich itself (among other things increase of the maximum fine on 500.000, - €, widening of the control powers, personnel increase, etc.) violations are pursued meanwhile however with great hardness.

On July 5, 2019, the city of Regensburg also enacted a bylaw against the misuse of residential property. How, and especially with what rigor, the bylaw will be implemented and enforced in Regensburg remains to be seen. However, to avoid risking a fine – which, according to Section 13 of the bylaw, can amount to up to €500.000 (!) – short-term rental providers should exercise caution. It is essential to gain at least a general overview of the bylaw's key provisions (available at: https://www.regensburg.de/fm/RBG_INTER1S_VM.a.253.de/r_upload/zweckentfremdungssatzung-regensburg.pdf ).

Central rule for the question of whether the own landlord activity may violate the ZeS is § 3 ZeS, which reads as follows:

"§3 Misappropriation

(1) Housing is misappropriated if it is supplied by the authorized person (s) and / or the renter (s) other than for housing purposes. A misappropriation exists in particular if the living space

1. to more than 50 v. H. the total area is used or left for commercial or professional purposes,

2. more than eight weeks in a calendar year is used for purposes of tourist accommodation,

3. structurally altered or used in such a way that it is no longer suitable for residential purposes,

4. is empty for more than three months,

5. is eliminated (cancellation).

(2) A misuse is not present when

1. Living space is empty, because he could not be rented for a long time despite demonstrable appropriate efforts,

2. Living space is demonstrably rebuilt, repaired or modernized or is to be sold in the near future and is therefore temporarily uninhabitable or empty,

3. an apartment is shared by the person entitled to dispose of the property or the tenant for commercial or professional purposes, but overall the residential use predominates (over 50 of the total area) and rooms are not within the meaning of para. 1 no. 3 have been altered structurally,

4. the living space is combined or shared with other living space for further residential use. "

When "Wohnraum" iSd ZeS is present, regulates § 2 ZeS.

Yes, they exist. According to §§ 4-7 ZeS it is possible to have the misappropriation approved under certain conditions by the city of Regensburg. A permit is considered in the following cases:

• Authorization based on priority public interests and predominant private interests, § 5 ZeS,
• Approval of replacement living space, § 6 ZeS, and
• Approval of payment of compensation, § 7 ZeS.

The application for such approval is in accordance with. § 4 para. 5 ZeS to the City of Regensburg, Office for Urban Development.

Concerning. The question of whether such an application for approval in your specific case legally "makes sense", or in general with questions on the purpose of alienation order contact our office by phone, email or arrange a personal meeting at our offices in Regensburg or Landshut.