Airbnb offers the opportunity of letting and booking private accommodation, such as holiday homes, houses and apartments on the internet. It is used in more than 190 countries and accommodation is now offered in more than 33.000 towns and cities. In 2015 some 575.000 tourists booked a room, apartment or house in Amsterdam via Airbnb. On average tourists stayed slightly over three nights in the city; the groups in which they came averaged 2.5 persons. Such a large number of visitors arriving in Amsterdam undeniably causes problems. The question is what local inhabitants, landlords or the local authorities can do about the situation. Below I discuss a number of pronouncements that offer answers to that question.
Rules and regulations
Law Court of Amsterdam, 10 September 2013: the placing at the disposal of tourists against payment of an apartment within AoC, intended for occupation during a short period, for example via Airbnb, is commercial exploitation and, thus, not permitted. On the basis of this judgment an AoC may attack apartment owners if they let their apartments via Airbnb without permission. On the grounds of this judgment letting via Airbnb within an AoC is in principle not permitted and, in this case, an AoC can take action against it.
Amsterdam District Court, 8 May 2015: the rental agreement states that subletting is not permitted, thereto attaching a penalty clause. However, the tenant rents out his (social) rented accommodation to tourists via Airbnb. The judge dissolves the rental agreement and orders the tenant to pay the incurred investigation costs of € 6.500..-, administration costs of € 3.000.-, extrajudicial costs of €875.-, contractual penalties of € 7.500.- and court costs of € 3.000.-. In sum, the tenant must pay the landlord almost € 21.000.-; he can also start looking for somewhere else to live.
Law Court of Amsterdam, 28 January 2014: in the case of illegal subletting as, for example, may be the case in Airbnb letting, a landlord, provided always he is able to demonstrate that he has incurred costs opposing prohibited subletting (thereby sustaining loss), may claim loss of profit. It thus follows that a landlord may, in certain circumstances, claim any profit a subletter might make through letting his property via Airbnb.
Rules of the Municipality of Amsterdam
Under certain conditions the Municipality of Amsterdam allows the letting of a property via Airbnb. However, this is governed by strict rules. The owner must inhabit the building himself, the rental period may not exceed two months per year, tax must be paid on the rental income, the building must satisfy the fire safety regulations, the property may not be rented out may not be more than four persons at any one time and no inconvenience may be caused for the local inhabitants.
Failure to comply with the above exposes the owner to the risk of being fined between € 12.000.- and € 18.500.-. If, for example, an owner rents his property out to tourists and lives elsewhere, this is a case of removal of the property from its use as a dwelling without the necessary authorization having first been obtained. That is a violation of the Housing Act. In such cases the Municipal Council may impose a fine on the offender. On 7 October 2015, for instance, the Administrative Section of the Council of State ordered an owner to pay a fine of € 12.000.- because, in the terms of the foregoing, there was a case of hotel-style rental of living space.
Deed of Division of Owners
The landlord must not only comply with the rules of the local authority, but also, almost invariably, seek permission from the Association of Co-Owners for temporary letting for, for example, Airbnb, holiday hire and short stay. The Deed of Division almost invariably states that the apartments have a function of habitation. Holiday hire to tourists is regarded as commercial hire and that is, on the basis of the function of habitation, in conflict with the Deed of Division. If, then, the apartments have a function of habitation, permission from the Association of Co-Owners is always required. This has been confirmed on several occasions in court judgments in recent years.
Internal Rules of the Association of Co-Owners
In the Internal Rules of the Association of Co-Owners binding agreements are made concerning, for example, the use of common areas and noise pollution. On this last point it may be noted that, for example, after 23:00 hrs it is not permitted to allow amplified music to be heard above a specific noise limit. An internal rule set by the Association of Co-Owners can then serve as a basis for action against any inconvenience. Because not only the owner is bound by the internal rules, but so are his visitors or guests.