The short-term letting of residential property to holiday guests represents an option for owners in attractive locations to generate rental income. However, various legal frameworks must be examined before making such a decision.
In principle, the letting of residential property, including to short-term tenants such as holiday guests, is permissible. This applies to both rented apartments and co-owned apartments within the framework of a condominium owners' association (WEG). In a judgment dated 12 April 2019 (Az. V ZR 112/18), the German Federal Court of Justice ruled that letting to holiday guests cannot generally be prohibited, provided that the use as a holiday flat is not the primary purpose of the apartment. Therefore, short-term letting must not outweigh traditional residential use.
Legal Peculiarities in Condominium Owners' Associations
For apartment owners in an association according to the German Condominium Act (WEG), the declaration of division or community rules are important. These documents may contain specific regulations regarding the type of use for separate property. If the declaration of division explicitly permits short-term letting to holiday guests or does not prohibit commercial use, this type of letting is often allowed. A complete prohibition of letting to holiday guests cannot easily be incorporated into the community rules or brought about by a majority resolution.
If an apartment is not separate property but solely owned, the restrictions of a WEG do not apply. In this case, building law and state-level prohibitions on misuse of property are primarily to be observed.
Prohibitions on Misuse of Property and State-Level Regulations
In many German cities and federal states, there are so-called prohibitions on misuse of property. These laws aim to counteract a shortage of housing and regulate the use of apartments to prevent their use for purposes other than permanent living. Letting to holiday guests may, under certain circumstances, be considered misuse if it exceeds a certain duration or if the use of the apartment is not predominantly for residential purposes. The exact provisions vary considerably regionally and require a thorough examination of local regulations.
- —Examination of the declaration of division and community rules for WEG property.
- —Observation of state and municipal prohibitions on misuse of property.
- —Compliance with building law frameworks for use as a holiday flat.
Consequently, for owners considering letting to holiday guests, a detailed engagement with the specific legal situation is indispensable to avoid legal uncertainties and potential consequences.
