BVerwG: Holiday apartments do not constitute residential use within the meaning of the Land Use Ordinance

1. Stays in holiday apartments do not constitute residential use within the meaning of the Land Use Ordinance.

2. An area in which residential use does predominate, but in which stays in holiday apartments are intended to account for a share that also characterizes the area, differs substantially within the meaning of § 11 para. 1 BauNVO from a general residential area.

KFR – Kanzlei für Real Estate explains the decision of the Federal Administrative Court (BVerwG) and its significance for municipal land use planning.

Background of the decision

The subject of the present decision is a development plan designating a special zone for the accommodation of facilities and establishments for permanent residential use and guest accommodation.

In the BVerwG’s view, the present designation of a special zone for “permanent residential use and guest accommodation” could be based on § 11 para. 1 BauNVO.

Demarcation from residential areas

As required by § 11 para. 1 BauNVO, the designated area differs substantially from the building areas under §§ 2 to 10 BauNVO, which the BVerwG then sets out in detail.

The BVerwG first clarifies that a substantial difference from the areas under §§ 2 to 10 BauNVO exists when a designated content is intended that cannot be assigned to any of the area types regulated in §§ 2 ff. BauNVO and therefore cannot appropriately be achieved by a designation based on them.

As has already been decided on multiple occasions, the general purpose of a building area is the decisive criterion for whether the designated special zone differs substantially from a building area type within the meaning of §§ 2 to 10 BauNVO.

The special zone designated here differs substantially first from a pure residential area pursuant to § 3 BauNVO. Pure residential areas serve residential purposes pursuant to § 3 para. 1 BauNVO. The designated special zone, however, also serves guest accommodation. This use does not constitute residential use within the meaning of the Land Use Ordinance.

The concept of residential use within the meaning of § 3 para. 1 BauNVO is characterized by

• a permanently established domesticity, self-determined management of the household and domestic sphere
• as well as the voluntary nature of the stay.

These criteria must be fulfilled by those for whom the accommodation serves as a home.

Decisive for fulfilling the residential use concept are the usage concept and its fundamental implementation.

In the case of guest accommodation, which is to be offered here in holiday apartments, there is no domesticity that is permanently established. This is because, according to the usage concept and its typical implementation, the guests stay in these premises for no more than a few weeks at a time.

No equivalence with general or mixed-use areas

In the BVerwG’s view, the municipality also did not intend to designate a general residential area within the meaning of § 4 BauNVO. The designation of a mixed-use zone would equally fail to achieve the municipal planning objective, and finally the designation of a special zone pursuant to § 10 para. 1 BauNVO serving recreational purposes is precluded. This is because permanent residential use is incompatible with the general purpose of such a special zone.

Commentary from KFR – Kanzlei für Real Estate

The issue of the planning law admissibility of holiday apartment use has long been the subject of case law and legal literature. The views on this matter are varied.

This prompted the legislature to act in 2017. The new provisions in § 12 para. 7 BauGB, § 1 para. 5 BauNVO, § 11 para. 2 BauNVO and § 13a BauNVO were created.

Particularly noteworthy is the new provision in § 11 para. 2 BauNVO, pursuant to which a mixture of guest accommodation or holiday use on the one hand and permanent residential use on the other may also be permitted in designated tourism areas.

It should be noted, however, that these new provisions generally have no effect on existing development plans. This is because – as confirmed again in the present BVerwG decision – the Land Use Ordinance applicable at the time the development plan was adopted applies in principle. Particular attention must be paid to this when interpreting development plans.

Reference: BVerwG, Judgment of 18 October 2017 – 4 CN 6.17 (ZfBR 2018, 158)