Misappropriation of living space

Does my furnished rental constitute a misappropriation of living space? 

I am the owner and can therefore do whatever I want with my flat. Most owners and landlords know that this is not the case in Germany. But where are the limits? What am I allowed to do with my flat and what am I not?

The "normal case" is to rent out the flat for an unlimited period of time for residential purposes to one or more tenants. However, both tenants and landlords may have an interest in using living space for other purposes. 

One might think of students or trainees abroad who only need their own accommodation for a few months. Accommodation in a hotel would be associated with considerably higher costs and is usually simply not affordable. A furnished and fully equipped flat can help. Furnished flats are also interesting for tourists who only want to spend a few days in a foreign city. 

Living space is scarce, especially in big cities like Cologne, Hamburg or Munich. For this reason, the federal states have enacted laws that allow individual municipalities where there is a great housing shortage to ban short-term rentals of living space. The living space should not be "misappropriated" for tourists, as there are enough hotels available for tourists. 

1. There is a misappropriation statute for my municipality.

If, as in Cologne, there is a misappropriation statute, I cannot in any case rent out my entire flat to tourists (a few days at a time) for very short periods throughout the year. In case of a violation, there is the threat of high fines. 

On the other hand, a longer-term but time-determined letting to e.g. foreign students or interns constitutes a letting for residential purposes and is not prohibited by a misappropriation statute. The longer the rental period, the more certain you can be that the authorities do not consider the rental to be a misappropriation. Letting for a few weeks is strongly discouraged. Landlords should check the details of the respective misappropriation statutes and rent to the same person for at least three months at a time. The longer the better. Protect yourself by offering generous discounts for a rental period of six months or longer.

2. there is no statute on misappropriation for my municipality.

If there is no statute on the misappropriation of property, renting out the flat for shorter periods of time is less problematic. Renting for one or two months should be legally acceptable and even constitute a transfer for residential purposes or at least close to residential purposes. On the other hand, if living space is let for single nights, there is a risk of official intervention even without the existence of a statute on the misappropriation of property. The competent authority could be of the opinion that the flat is being used as a holiday home and that an official permit for this change of use would therefore be required. In addition, a landlord who offers other services such as a breakfast service or similar runs the risk of being accused of commercial activity. 

Our advice:

Basically, every landlord can be advised from a legal point of view to rent out furnished flats as long as possible. This way, legal risks can be excluded or minimised. 

Author:

Lawyer for tenancy law Daniel Heinrich Pesch, LL.M.
https://www.anwaltskanzlei-pesch.de/