A woman would like to rent her apartment to holiday guests – but all neighbors are against it and are in front. You don’t want new people in the house all the time. The dispute has now reached the Federal Court of Justice.
IIn some areas you can make good money from holidaymakers – but can I even rent out to holidaymakers? A dispute broke out among apartment owners in Papenburg in Emsland, and it reached the Federal Court of Justice (BGH) in Karlsruhe on Friday. A woman wants to offer her apartment as a holiday home. The owners of the remaining seven apartments are against it, they feel disturbed by the changes in the house. (Az. V ZR 112/18)
In the declaration of division, which regulates the principles of coexistence in a community of owners, short-term rental was initially permitted. In principle, only all owners can change such a declaration together. In this case, however, the vacation rental opponents made use of a so-called opening clause and ruled out letting to vacationers with a three-quarters majority.
The Aurich Regional Court, which last ruled in the dispute, considers this decision to be null and void. It is based on a BGH ruling from 2010. At that time, the highest civil judge ruled in a case from Berlin that letting to frequently changing guests is “part of the permissible residential use”. First of all, every owner has the right to do what he wants with his apartment.
There is one important restriction in this ruling, however: According to the BGH, holiday guests in the house are only allowed “if the declaration of division does not stipulate otherwise and the apartment owners have not agreed otherwise”. In the case at that time, no use was made of it.
Things are different here. The BGH can announce its judgment on the day of the hearing or set an extra date for it. Regardless of this, so-called misappropriation bans for living space now apply in a number of municipalities with a housing shortage. This is to prevent short-term rentals, for example through the accommodation broker Airbnb, from getting out of hand. Anyone who wants to rent to holiday guests in Berlin, for example, needs a permit.