The Council of State ruled on 7 February 2018 that, in 2013, Amsterdam was justified in imposing four fines on businesses that rented out dwellings as holiday accommodation for tourists. The total amount of the fines comes to EUR 168.000.
Under the Housing Allocation Act, it is forbidden to rent out a dwelling for other than residential purposes without a permit. Doing so constitutes withdrawal from the housing stock. By being rented out as holiday accommodation, a dwelling designated by the municipality as belonging to the housing stock is withdrawn from that designated use. While it is rented to tourists, the dwelling can no longer be used by the owner as his main residence.
Withdrawal within the meaning of the Housing Allocation Act can only occur if the building in question has at some point been designated for permanent habitation. The businesses that were fined argued, however, that the properties concerned had never been intended for that purpose. Although the properties are all registered with the municipality as “dwellings” [woningen], the businesses claimed that a property can only be considered as a dwelling if someone has been registered as living at that address.
However, the Administrative Division of the Council of State disagreed. In order to determine whether a building is intended for permanent habitation, it may be relevant whether or not people are listed as living at the address in the Personal Records Database (BRP), but that is not decisive. What was decisive in this case was that the dwellings concerned had in fact been legally designated for habitation.
The businesses also argued that it was impossible to establish whether there was actually any violation because no tourists were found on the premises during the inspections. But according to the Division, there was indeed a case of illegal holiday rental because the rooms were furnished identically and were advertised on sites such as Booking. com and Airbnb.
As regards the argument that the premises had only been rented to tourists on a single occasion, the Division found, moreover, that it followed from the fact that the dwelling had been rented to tourists and used by them – even just once – that it was not available for permanent habitation and that it had therefore been withdrawn from the housing stock.
With this ruling, the Council of State has thus strictly interpreted the concept of “withdrawal from the housing stock”. Even just a once-only rental constitutes a violation. This ruling is therefore in line with the new limitation imposed on the maximum rental period for holiday rentals in Amsterdam. With effect from 1 January 2019, that period will be reduced to 30 days a year. Initially, it was feared that such a short period of time could not be regarded as withdrawal from the housing stock and that it would not be deemed such by the courts. This ruling by the Division shows, however, that even just a once-only rental to tourists constitutes such withdrawal.
Where this point is concerned, we believe that the Administrative Division should provide a clearer explanation of its rulings on withdrawal from the housing stock, given that the legislative history shows that there is only a case of withdrawal if the resident is deemed to have abandoned his intention to have his main residence in the housing concerned for a lengthy period of time. We consider that the finding that the dwelling was rented out to tourists for just a single day is insufficient. It is precisely the additional (factual) circumstances – such as the presence or absence of personal possessions in the premises – that are (decisively) relevant in deciding that the resident has abandoned his intention to have his main residence in the housing concerned for a lengthy period of time. Only then, in our opinion, is there in fact a case of withdrawal from the housing stock.