Term and legal definition of dual residence
The term dual residence refers to the situation where a person simultaneously maintains two residences, each of which qualifies as a residence within the legal sense. Dual residence is particularly relevant in the context of German registration law, tax law, and social law. Comparable regulations also exist in other legal systems, such as Austrian and Swiss law, concerning the simultaneous possession of multiple residences.
Dual residence must be distinguished from terms such as primary and secondary residence, secondary home, or temporary stay. In the legal context, dual residence describes the parallel establishment of residences according to national statutory provisions.
Legal basis of dual residence
Registration law
Regulations in Germany
According to the German Federal Registration Act (BMG), a natural person may maintain multiple dwellings. Each of these dwellings may legally constitute a residence. The residence primarily used by the person in question must be declared as the main residence (§ 21 BMG). Other dwellings are recorded as secondary residence(s).
- Registration requirement: Every residence, including dual residence, must be reported to the relevant registration authority (§ 17 BMG). This notification obligation prevents legal uncertainty and serves, among other things, administrative purposes, elections, and the exercise of official responsibilities.
- Definition of dwelling: A dwelling within the meaning of the BMG is any enclosed area used for living or sleeping (§ 20 BMG).
Regulations in Austria
In Austria, the Registration Act (MeldeG) stipulates that a person may have multiple residences (main residence and secondary residences). Differences arise regarding the allocation of rights (e.g., voting rights, social benefits).
Regulations in Switzerland
Swiss law also allows for the establishment of residences at several locations within the meaning of the Civil Code (ZGB). Here, the principles of habitual residence, the center of vital interests, and statutory reporting obligations are decisive.
Tax aspects
Income tax law
A dual residence has significant effects under German tax law, especially regarding the question of unlimited tax liability. The decisive factor is where the taxpayer has their habitual abode and residence within the meaning of § 8 of the German Fiscal Code (AO). Anyone who holds one or more residences in Germany is subject to unlimited income taxation.
- Dual residence abroad: If an additional residence (e.g., in Switzerland or Austria) is maintained alongside a German residence, this can have tax implications for double taxation situations. In such cases, double taxation agreements (DTA) apply and may determine the allocation of residences.
- Commuters and double housekeeping: Persons who, for professional reasons, maintain a second residence at a location other than their main place of life (e.g., weekly commuters), can claim expenses incurred in connection with so-called double housekeeping as tax-deductible expenses (§ 9 para. 1 no. 5 EStG).
Social law aspects
Dual residence is relevant in social law, for example in determining the competent authority for social benefits and the place of entitlement to certain benefits (such as child benefit, social assistance, or housing benefit). Generally, the main residence is decisive, but secondary residences and actual stays can also be relevant.
Civil law aspects
According to § 7 of the German Civil Code (BGB), a person may simultaneously have multiple residences. The concept of residence is important for establishing jurisdiction and venue. A person is deemed to reside at all relevant locations where a residence exists.
Practically relevant case groups of dual residence
Commuters
Many employees temporarily maintain a dual residence by having a dwelling both at their place of work and at their main place of life. This is particularly common when there are long distances between the workplace and the main residence.
Students
Students frequently maintain a dual residence during their studies: a dwelling exists both at the place of study and at their home location, whereby the main residence is often retained and a secondary residence is registered at the place of study.
Cross-border commuters and persons employed abroad
Cross-border commuters, who for example live in Germany and work in Switzerland or vice versa, often have a dual residence in two countries. This entails special tax and registration obligations.
Legal consequences and obligations with dual residence
Registration obligations and risk of fines
Failure to report an additional residence as required under the BMG is a regulatory offense and can be penalized with a fine. Complete and prompt registration of all residences is therefore mandatory.
Taxation and levies
Establishing a dual residence can lead to a secondary residence tax if the respective municipality levies such a tax. The legal basis for this is found in the respective municipal statutes.
Social benefits and jurisdiction
The allocation and jurisdiction of social benefits are generally oriented to the main residence. Multiple registrations can, in some circumstances, lead to difficulties in claiming benefits or determining responsibility.
Voting rights
The right to vote is generally tied to the main residence. Only in exceptional cases (for example in local elections) is voting at the secondary residence possible under special conditions.
International aspects of dual residence
In an increasingly globalized world, having a residence in several countries at the same time is no longer unusual. In doing so, it is necessary to observe the respective national regulations and to carefully consider potential interactions, especially of a tax or registration nature. Issues of private international law and the mutual recognition of residences also play a role. Double taxation agreements and European law significantly influence the legal consequences.
Distinction from similar terms
- Main residence: Center of a person’s life, relevant for tax liability, social benefits, and voting rights.
- Secondary residence / second home: Another dwelling used regularly but not predominantly.
- Habitual abode: Place of residence where a person stays not just temporarily (at least six months).
- Registered residence: In registration law, any residence can be registered; the distinction between main and secondary residence is based on actual use.
Summary
Dual residence has a variety of relevant implications within the legal system. The legal consequences range from registration obligations under reporting law, to tax-related issues (such as secondary residence tax and double taxation), to matters of jurisdiction for social benefits and voting rights. When simultaneously establishing multiple residences, the respective national and international regulations must be observed, particularly regarding the completeness of registration, tax obligations, and the exercise of rights and claims. The development of mobility in society and working life is leading to a greater prevalence of dual residences and makes their legally secure handling in everyday life essential.
Frequently asked questions
Must a dual residence be reported to the authorities?
Yes, a dual residence – that is, the simultaneous occupancy of two residences – must generally be reported to the appropriate registration authority. According to the Federal Registration Act (BMG), every person is obligated to register both their main and secondary residence with the registration office within two weeks of moving in. The main residence is the one that is primarily used or where most of one’s personal life takes place. The second and any additional residences must be indicated as secondary residences. Failure to register can be considered a regulatory offense and result in a fine. The exact procedures and requirements may vary slightly depending on the federal state and municipality, so it is advisable to obtain information from the relevant registration authority at an early stage.
How does dual residence affect taxation?
A dual residence can have significant tax consequences. On the one hand, the so-called secondary residence tax may apply if a municipality has decided to impose such a tax. This tax serves as a municipal financing instrument and varies in amount depending on the city or municipality. On the other hand, dual residence may be relevant for income tax purposes, for example in connection with double housekeeping. If the secondary residence is maintained for professional reasons, certain expenses (such as rent, utilities, or travel costs) can be claimed as deductible expenses. However, the tax office scrutinizes whether the legal prerequisites – such as the necessity of the second residence for work and the existence of one’s own household at the main home – are met.
What are the legal consequences if a dual residence is not properly registered?
Failure to register a secondary residence or registering it late can be punished as a regulatory offense under §54 of the Federal Registration Act and may be subject to a fine of up to 1,000 euros or even more in some cases. In addition, intentional misrepresentation, for example to avoid the secondary residence tax, may also have criminal consequences (such as tax evasion). Registration authorities are also entitled to carry out regular inspections to detect violations in the registration system.
What rights and obligations arise from registering a dual residence?
Registering a dual residence creates obligations on the one hand – such as the payment of the secondary residence tax and updating address details with various authorities (e.g., tax office, driving license office, motor vehicle registration office). On the other hand, rights can also emerge, such as the ability to vote at the main residence, entitlement to certain social benefits, or the use of infrastructure and local services at both places of residence. When registering, it must be declared which dwelling is the main and which is the secondary residence, which is particularly important for tax and voting purposes.
What legal considerations are there in choosing a main and secondary residence?
According to the Federal Registration Act, the main residence is the dwelling where the center of one’s life is located. This is usually where the person lives most of the time, works, has their family, or the center of their personal interests lies. Arbitrary selection is not permitted by law; rather, the residence must reflect the real circumstances and be capable of being substantiated if necessary. The secondary residence is any other residence that is not the main residence. Providing incorrect information in the registration records is a regulatory offense and may result in fines.
Can children or spouses register the same dual residence?
Children or spouses may also register a dual residence, provided they actually reside regularly in both dwellings. For families with children, there are special regulations, for instance regarding parental authority, child benefit, or schooling. Also, each spouse must register their main and secondary residence independently, unless they actually live together at both residences. In cases of separated partners or dual residences due to study or work, this can lead to different registration scenarios.
Can rental agreements and landlords prevent dual residence?
Whether and to what extent a dual residence is possible generally depends on the rental agreement and the arrangements with the respective landlord. Legally, registering a secondary residence is fundamentally permitted; the tenant is, however, obliged to inform the landlord about the registration of an additional dwelling. In particular cases, the landlord may assert a legitimate interest in refusing, for example if the use as a secondary residence would result in particular burdens for the rented property. In general, however, the tenant is entitled to take up and register another dwelling or to use the rented dwelling as a secondary residence, as long as there are no contractual exclusion agreements.
