Misappropriation of Residential Property: Legal Situation and Current Decision on the Repurposing of Holiday Apartments in Berlin
With the judgment of January 20, 2025, the Administrative Court (VG) Berlin (Ref. 6 L 160/24) addressed the admissibility of converting former holiday apartments into regular residential use within an urgent legal protection procedure. The decision deals with the statutory requirements for changing use according to the Berlin Misappropriation Prohibition Act (ZwVbG) and the interpretation of administrative practices as well as their impact on housing providers, investors, and owners in the federal capital.
Background: Misappropriation of Residential Property in Berlin
Legal Foundations
The improper use of residential property – especially as short-term accommodation or holiday apartments – has been subject to comprehensive regulation in Berlin since the introduction of the ZwVbG (2014, amended several times). The aim of the regulations is to protect the strained housing market from further loss of rental apartments. The permanent or repeated rental of residential property to tourists or business travelers without official permission is therefore considered misappropriation and is generally prohibited (§ 2 ZwVbG).
Administrative Procedures and Approval Requirements
Anyone wishing to revert property previously used as a holiday apartment to regular residential purposes must typically undergo a notification or approval procedure with the relevant district administration. The authority examines, among other things, whether there was a permit for the previous use or whether the property was already used accordingly before the statutory provisions came into force. It is also decisive whether the intended use involves a return to the protected housing market.
Legal Dispute Before the Administrative Court Berlin
Facts
In the case under negotiation, the applicant was the owner of a property that had been offered as a holiday apartment for several years. The application intended for its future use to serve regular residential purposes again. The responsible Berlin authority saw formal obstacles to this: It considered the previous use without explicit permission as unlawful and refused positive verification of use or notification of the change of use.
Central Dispute Points
The central issue in the proceedings was whether the reconversion of a formerly tourism-used residential area into regular living quarters can be made dependent on a separate official approval – especially if the previous use did not comply with legal requirements. It was also disputed whether the applicant could claim a subjective right to reinstate residential use and how administrative practice should be assessed under the principle of legal certainty.
Decision and Justification of the VG Berlin
The VG Berlin ruled in favor of the applicant in light of recent case law on residential protection in Berlin. The court reasoned that a renewed supply to the housing market after the end of illegal misappropriation should be allowed in principle, provided there are no legitimate concerns to the contrary. The return to the protected housing market serves the legal purpose of the ZwVbG, which aims to stabilize and expand the regular housing supply.
Administrative objections based solely on the lack of previous approval are therefore irrelevant, provided the change to residential use does not result in new misappropriation. Instead, a prohibition authorization under § 5 ZwVbG only comes into play in cases of actual (further) misappropriation. Against this background, the court rejected the negative stance of the district administration and emphasized the positive effect of reintroducing housing to the local market.
Importance of the Decision and Implications for Practice
Legal Certainty for Owners and Investors
The decision strengthens the position of owners and potential investors who wish to revert properties unlawfully used as holiday apartments to standard residential use. The administrative courts thereby clarify that the reinstatement of residential property cannot be permanently excluded due to previous violations of misappropriation law, as long as statutory requirements and vested rights are observed.
Administrative Practice and Possible Consequences
For the practicability of securing residential property and the efficiency of official control, the decision results in prioritizing returns to the housing market. This can minimize inadmissible vacancies or blockages of residential property.
At the same time, the decision points out that individual cases must be carefully considered, especially regarding lingering instances of misuse or building code obstacles. The legal assessment could also differ in other federal states or municipalities, as state and local legal peculiarities may gain considerable relevance.
Further Legal Considerations and Ongoing Developments
The expansion of residential property and the strengthening of tenant protection remain central societal and housing policy challenges. Against the backdrop of constantly evolving case law, it is advisable to continuously monitor the current legal situation and administrative practice.
Some relevant proceedings are still pending in higher instances or are pending in other federal states. The presumption of innocence in favor of participants is always maintained. The presentation is based on the published decision (Source: VG Berlin, judgment of 20.01.2025, Ref. 6 L 160/24, available at https://urteile.news/VG-Berlin_6-L-16024_Zufuehrung-von-Ferienwohnungen-zu-Wohnzwecken~N34713).
Finally, it should be noted that legal questions related to the misappropriation of residential property are complex and could be influenced by regionally different conditions. For individual questions about the current legal situation or specific planned changes in use, the attorneys at MTR Legal Rechtsanwälte are available to assist.
