OVG Schleswig-Holstein confirms the legality of the second home tax in Fehmarn
The Schleswig-Holstein Higher Administrative Court (OVG), with a ruling on January 23, 2025 (Case No. 6 LB 7/24), confirmed the legal validity of imposing a second home tax in the city of Fehmarn. The local statute, which regulates the principles for determining and setting the levy, was subjected to judicial review in the course of this proceeding and was declared consistent with higher-ranking law.
Material prerequisites of the second home tax
The decision highlighted that municipal law grants municipalities the competence to levy a charge on possessing an additional dwelling within the municipal area. The key criterion here is that the legal basis is sufficiently defined and the principle of equality is observed. The statute of the City of Fehmarn specifies the conditions under which a second home tax applies, for instance regarding the taxable object, the assessment basis, and possible exemptions.
During the proceedings, objections were raised against the design of the statute, particularly concerning possible disadvantages to those affected and an inadequate definition of second home ownership. The OVG clarified that the provisions are sufficiently determined and not arbitrary. Furthermore, there are no prevailing constitutional concerns regarding the factual prerequisites.
Compatibility with constitutional and European law
Another aspect of the judicial review concerned the question of whether the statutory regulation fulfills the requirements of the German Basic Law as well as European legal standards. The court determined that the levying of the second home tax in its concrete form complies with the principle of equality. Moreover, according to the OVG, there are no restrictions from Union law regarding the municipal regulatory power in this context.
As a result of the decision, municipalities affected still have the opportunity to use the second home tax as a secure source of income, as long as the essential requirements for transparency and certainty are maintained.
Outlook and significance of the decision
The judicial confirmation of the statute represents an important precedent for similar regulations in other municipalities. In particular, the ruling clarifies that structuring second home taxes within the existing legal framework is generally permissible, provided necessary diligence requirements are met.
For property owners and investors, this ruling is of considerable practical relevance. It underscores the need to carefully monitor local tax regulations and consider their impacts on existing real estate or planned investments. As tax law is subject to continuous adjustments, it is recommended that issues concerning the applicability or interpretation of the municipal second home tax be assessed individually according to the specific circumstances.
Should uncertainties arise in connection with second home ownership or other tax-related issues, MTR Legal offers the possibility of obtaining further clarification through personalized legal advice in tax law:Legal advice in tax law.
