Owners can actually do what they want with their apartments and houses – actually. Because lack of living space and the accompanying sharp rising real estate prices in Berlin and other cities ensure that every square meter of living space is fought over – and that an alternative use of this space, for example as commercial space or a vacation home, should only be possible in certain cases. Since 2006, the individual federal states in Germany have been able to pass their own laws on the misappropriation of residential space and some have already made use of this. In Bavaria, for example, such a ban has been in place since 2007 and in North Rhine-Westphalia, misappropriation is regulated by the Act on the Promotion and Use of Housing. Hamburg was even earlier, where the misappropriation of residential space has been regulated by law since 1971.
Finally, on December 12, 2013, a law prohibiting the misappropriation of housing was introduced in Berlin in order to counteract the persistently high demand against the low supply – and to ensure that housing is also used as such. So what exactly is it all about?
What is regulated by the Berlin law prohibiting the misappropriation of housing, the ordinance prohibiting the misappropriation of housing and the implementing regulations on the prohibition of misappropriation of housing?
The Prohibition of Misappropriation Ordinance (ZwVbVO), which was last amended in 2018, is based on the Prohibition of Misappropriation Act (ZwVbG) of 29.11.2013 and aims to provide the population of Berlin with sufficient living space at reasonable conditions. The law has already been amended twice, first in 2016 with the First Amendment Act and then in 2018, when the Second Amendment Act to the Prohibition of Misappropriation Act came into force.
The law stipulates what exactly is to happen and what objective is to be pursued, while the ordinance specifies the concrete measures for implementation. In concrete terms, the law on misappropriation therefore makes any alternative uses of the living space subject to approval. The ordinance, on the other hand, defines the scope of application, i.e. which residential premises are affected and how to proceed with approvals and exceptions in the case of misappropriation.
The implementation regulations are issued by the Senate Department for Urban Development and Housing and specify the regulations contained in the Prohibition of Misappropriation Act and the Prohibition of Misappropriation Ordinance. They are intended to assist the Berlin districts and facilitate the implementation of the Misappropriation Prohibition Act. In this way, they also ensure that the law and the ordinance are enforced as uniformly as possible. The implementation regulations are a good source of information not only for the districts, but also for those affected by the ban on misappropriation.
Although the term of the ZwVbG and the ZwVbVO is not fixed, the prerequisite for this is a threat to the supply of the population with sufficient and appropriate housing – the legislators are obliged to constantly review and assess this threat and a repeal of the law and the ordinance is quite conceivable if the housing market eases.
What is considered misappropriation of living space?
Misappropriation in accordance with Section 2 ZwVbG
Let’s now take a look at the meaning of misappropriation of living space and what exactly this actually means. Because what is considered misappropriation is clearly defined in Section 2 of the Misappropriation Prohibition Act.
Simply put, misappropriation always occurs when living space is no longer used as such, even though it is permanently suitable for this purpose.
If it is used instead for a business or profession, for example as an office or practice, it is considered to be misappropriated.
Use for tourist accommodation or as a vacation apartment also contradicts the purpose of use as living space and has been an important issue in major cities since the continued success of online portals such as AirBnB and a driver of measures against misappropriation. AirBnB has long been a thorn in the side of tourist hotspots such as Amsterdam, Barcelona, Venice and Berlin, as the income that apartment owners can generate from short-term rentals to tourists sometimes exceeds the rental income many times over, thus inviting misappropriation. Renting out private living space as vacation accommodation is a lucrative business that would otherwise be difficult to regulate.
However, misappropriation also applies if the living space simply remains empty for too long, usually longer than three months, as well as if construction work makes it impossible to live there in the future. In addition, the ban on misappropriation of living space also prohibits the removal, i.e. demolition, of a suitable property.
If the situation in a large city is already so tense that suitable housing is hardly available for its residents, a ban on the misappropriation of housing makes perfect sense. However, it is considered one of the last resorts in the fight against the housing shortage.
What are the exceptions to the ban on misappropriation?
However, the ZwVbG also stipulates what is not considered misappropriation and when other use of the living space is possible – or can be approved in accordance with Section 3 of the Misappropriation Prohibition Act. This is the case in the following situations:
Subletting a maximum of 49 percent of the living space of a main residence in Berlin
Pursuant to Section 2 (2) no. 5 in conjunction with Section 5 (6) ZwVbG, the main residence in Berlin, where the center of life is demonstrably located, can be used by the beneficiaries for purposes other than residential purposes if the use as living space predominates. At least 50 percent of the area must be used for residential purposes – only half of the kitchen and bathroom are included in this calculation.
Permission for temporary vacation rental
If the living space was already being used as a vacation apartment or for tourist accommodation at the time the regulation came into force, there is no misappropriation – however, this only applies for the first 2 years and must be registered with the relevant authorities and approved after this period.
As a rule, the living space can then be used as a vacation home for a maximum of 90 days per year. If a maximum of 49% of the living space is used for subletting to vacation guests, official approval is not required.
Permission to use living space for purposes other than its intended purpose (including structural alterations)
According to Section 2 (1) numbers 1-3 ZwVbG, temporary or permanent use of the living space for other purposes is possible, but must be approved and depends largely on the reasons for the application.
Approval for vacant residential space
In the case of living space that is quickly converted, renovated or modernized and remains uninhabitable for a period of up to twelve months, there is no violation of the law prohibiting misappropriation. The same applies if the living space remains empty despite suitable efforts to rent it out.
Permission to demolish living space
Demolition of the residential space can be approved if new, comparable residential space is built in return – as stipulated in Section 3 (1) ZwVbG.
What should I do if I notice that an apartment is being used for a different purpose?
If living space is used for purposes other than its intended purpose without official approval, the space must be returned to residential use after the order has been issued. The deadline for this is usually one month. However, if use as living space is no longer possible, an order can be issued to restore the space to an equivalent condition at the expense of the person entitled to dispose of it. The responsible district office can also appoint a trustee for this purpose if the authorized parties cannot prove that appropriate measures have been initiated within the deadlines set by the authorities for restoration.
What are the penalties for violating the ban on misappropriation?
As many cases of unauthorized or unpermitted misappropriation go unnoticed without the help of neighboring residents, the range of fines for violations has been increased to up to EUR 500,000.
Frequently asked questions
What influence does data protection have on the actions of those involved?
If there is a suspicion of a violation of the law prohibiting misappropriation, portals such as AirBnB, for example, can be obliged to hand over landlords’ data. Even if this interferes with the fundamental right to informational self-determination, it was recognized as proportionate in this case.
In general, however, employees of the district offices are not allowed to investigate violations themselves for data protection reasons.
Are there ways to circumvent the ban on misappropriation?
In practice, many cases of misappropriation go unnoticed because the authorities do not have sufficient capacity to investigate. However, the ban on misappropriation can also be easily circumvented by renting out apartments for two months, thus creating a regular rental contract.
