Last year, the Municipality of Amsterdam tightened up the regulations for renting residential accommodation via websites like Airbnb. For instance, under the tighter policy, residential accommodation may only be rented by the main occupant, for not more than 60 days per calendar year and to a maximum of four people. In many cases, the main occupant must also have a housing permit to be permitted to rent out residential accommodation. Hefty fines are incurred through contravening these rules. Such a penalty was the subject of a decision pronounced on 5 April 2017 (ECLI:NL:RVS:2017:953) by the Administrative Jurisdiction Division of the Council of State. The decision relates to a case in which the Municipal Executive of Amsterdam imposed an administrative penalty of €24,000 on the owner and co owner of a property.
‘Meldpunt Zoeklicht’ (Searchlight hotline)
This case involved an owner who had rented out all three residential accommodations in the building to one person. The owner engaged a firm of estate agents to manage the properties. At some point, the estate agents notified the municipality’s Searchlight Hotline that they suspected that the accommodations in the building were being rented to tourists. The estate agents did so after the downstairs neighbour had made a report. During an inspection of the building, supervisors from the municipality discovered three tourists in one of the accommodations. The tourists explained that they had booked the room for four nights via Airbnb. They went on to state that they had also previously stayed in one of the other accommodations in the building.
The owner is the infringer
Since the owner did not have a housing permit, the Municipal Executive decided to impose a fine on him of €24,000 due to two contraventions of the Housing Allocation Act and the Municipality of Amsterdam’s Housing Regulations. The Municipal Executive considers the owner to be the infringer because he failed to make a plausible case that he did not know or could not have known that the residential accommodation was being rented to tourists. The court agreed with the Municipal Executive. At the Division, the owner argued that the Court had wrongly considered him to be the offender. He pointed out the fact that he himself had discovered the infringement (via the estate agents) and reported it to the municipality.
Firstly, the Division considers the case in a general sense, with reference to previous case law (decision of 15 October 2008, ECLI:NL:RVS:2008:BF8999), and in this light considers the infringer to be the person who has actually infringed the legal rules in question. In the first place, that is the person who physically performed the forbidden act. Furthermore, in certain cases, the person who did not actually commit the infringement, but to whom the act is to be attributed, can be held responsible for the infringement and as such can be considered to be the infringer.
According to the Division, with reference to the Division’s decision of 9 January 2013, ECLI:NL:RVS:2013:BY7996, the Court has rightly considered that the owner of a building who rents out that building may be expected to stay informed up to a certain point about the use being made of that rented property. If the owner does not want to be held responsible for unlawful use, then the owner must argue convincingly that he did not know and could not have known that the building was being used unlawfully. The Division ruled that the owner could be considered to be the infringer since he did not make a plausible case to the contrary. The mere circumstance that the estate agents at some point became aware of a suspected infringement due to complaints from a neighbour and then reported it to the municipality is not sufficient.
The Division did, however, decide to mitigate the penalty and reduced it by 25% to €18,000. It did so after taking into account the circumstance that the owner reported the infringement himself, and due to a lack of information at the Searchlight Hotline about what the Municipal Executive expects – apart from filing a report – from the responsible owner and/or landlord in connection with any potential contravention of the Housing Allocation Act.
Property owners in Amsterdam who rent housing and do not have a housing permit risk incurring a hefty fine if the tenant rents the residential accommodation to tourists via websites like Airbnb. If the owner wishes to avoid being considered to be the infringer, then it is advisable that the owner regularly acquires information/is informed about the use that is being made of the rented property. After all, the owner is required to argue convincingly that he or she did not know and could not have known about the tourist rental.
Would you like to know more about administrative fines and housing permits? Then please contact Jelmer Keur, Government and Property lawyer.
By Jelmer Keur