Can WEG prohibit holiday rentals?

A homeowner wants to rent to holidaymakers - but the owners' meeting prohibits this by a majority. Wrong, the BGH ruled. That was an inadmissible interference with property rights.

A homeowner is not limited to using his home for residential purposes only. He may also use his apartment for other purposes, as long as the other apartment owners are not impaired beyond measure.

The use of a consominium as a holiday home in a WEG, whose community regulations do not expressly permit this, is still possible as a rule. Although this use seems to be enforcing in some major cities in the meantime, it is not a commercial use under civil law.

The use as a holiday home can indeed be regarded as a commercial activity under tax law. However, the classification of such use according to the right of ownership does not depend on the taxable income type of the income from renting a condominium, nor on whether the lease is part of an entrepreneurial activity of the owner. The only thing that matters is what use is made in the apartment itself. The use of an apartment itself is not commercial when renting a condominium to constantly changing holiday or other guests with comparable accommodation needs. It serves the guests as accommodation and thus for residential purposes.

By decision, however, a prohibition or limitation of the rental or lease to holiday guests can not be prevented. It lacks the necessary decision-making competence.

In its judgment, the BGH makes it clear that this is a very heavily protected right: the property right, which is under the protection of the Basic Law. Therefore, the majority of the owners should not impose their will on an individual, so the presiding judge of the fifth civil senate, Christina Stresemann.

"A rental ban therefore requires the consent of all homeowners.Also short-term rentals or certain types - such as rental as a holiday or factory apartment - can only be prohibited with the consent of all homeowners." Only if there is an impairment beyond the proper extent can an injunctive relief be given in individual cases. All-inclusive claims that holiday guests disturb more or treat the community property not gently, lack any basis of experience. If, for example, short-term leases lead to disruptions, overcrowding, ongoing violations of house rules or noise pollution, the remaining apartment owners are entitled to injunctive relief against the letting special owner in accordance with § 15 (3) WEG.