of national law to EU regulations and to strengthen residential construction in inner-city areas. One "peripheral aspect" of the draft bill was expected, particularly in federal states with a high proportion of tourism: a clarifying decision by the legislator on the classification and permissibility of vacation homes under planning law.
Legal uncertainty regarding the construction and letting of vacation homes
The background to considerable legal uncertainty in licensing practice were court decisions by the Higher Administrative Court of Greifswald and the Higher Administrative Court of Lüneburg, which declared vacation homes to be "subject to special zoning". Despite the actual and structural similarity of vacation and permanent residences, according to this case law there are considerable differences under planning law, which lead to the incompatibility of (uncontrolled) coexistence. The case law thus put a stop to decades of approval practice, which had at least permitted vacation apartments in residential areas. This had put owners, landlords and project developers of vacation properties under considerable pressure.
Clarification from the legislator
The federal government's draft bill now contains the hoped-for clarification. Through a binding definition of vacation apartments in Section 13a BauNVO (Building Usage Ordinance) and a classification as a "non-disturbing commercial enterprise" or "accommodation business", the legislator will (once again) allow vacation apartments outside of special areas in future. By extending Section 22 BauGB, municipalities will in future be able to exclude the creation of undesirable secondary or second homes in order to safeguard the tourism function.
Effects on practice
Developers in vacation areas should have an easier time in future. The new regulation will also allow (permanent) apartments and vacation homes to coexist in the future. The occasionally restrictive practice of the building supervisory authorities is likely to be reduced. Legal uncertainty will be removed for (existing) owners.
The provisions of Section 10 BauNVO on vacation home areas, weekend home areas and campsites remain unaffected. The regulation also does not affect the misappropriation laws of the federal states, which can prohibit the conversion of apartments into vacation homes. Corresponding regulations are mainly applied in large cities and on vacation islands. There, the short-term letting of private apartments as vacation apartments is particularly attractive economically due to the high demand and undesirable due to the already limited supply of traditional apartments.
Dr. Christian Becker