Misappropriation Act
in Berlin
by Malte Herbst
Founder & CEO
Our experience pays off – from the professional (online) marketing of your property to competent guest communication and conscientious maintenance of your holiday accommodation.
Berlin is a very popular travel destination: millions of visitors from all over the world are drawn to the German capital every year. The demand for accommodation is therefore correspondingly high. At the same time, of course, this increases the incentive for many Berlin property owners to rent out their accommodation for tourism purposes and thus generate additional income.
But the Misappropriation Act has been in effect in Berlin for several years. In short: Anyone who has living space in Berlin, e.g. B. would like to rent to holiday guests, requires official approval. In this way, problems such as the shortage of living space and the increasing number of holiday apartments in Germany’s capital should be solved in a sensible way. In this guide you will find out what the Misappropriation Act means for real estate owners and what the current legal situation looks like.
Why is there a misappropriation law in Berlin?
Basically, the prices on the housing market in urban centers are constantly rising. That’s why it’s becoming increasingly difficult to find affordable housing, especially in a big city like Berlin.
The immediate consequence of the constant price increases on the Berlin housing market is not just a shortage of living space. Vacancies are also a big problem. In addition, many Berliners misuse their real estate, i. H. use it for purposes other than living, for example to earn money. A good example of this is when property owners want to short let their apartments as a holiday home.
In the recent past, apartments have been made available for rent to tourists privately or via large online platforms such as Airbnb. Although real estate owners can use this to improve their income, this development also means that the respective properties are no longer available on the open housing market.
But a lot has changed in this area since then. Anyone who owns real estate in the German capital today can no longer do what they want with it. Instead, the Berlin Vacation Rentals Act determines how real estate may actually be used. This is intended to counteract the local housing shortage in a targeted manner.
What does the ban on misappropriation mean in Berlin?
In order to regulate the misuse of real estate and in particular the rental of holiday apartments in Berlin and to create more living space, the following regulation has been in force since May 1st, 2014: Every Berliner who wants to misuse their living space must apply for an official permit.
What counts as misappropriation? One speaks of misappropriation when an available living space is no longer used for permanent living, but – according to § 2 ZwVbG – finds another use (e.g. rental as a holiday home).
When does the Misappropriation Act not apply in Berlin?
Although the Misappropriation Act has been in force in Berlin for a number of years, this does not mean that the misuse of living space is generally prohibited. There are exceptions that allow a different use of the Berlin living space without permission. The following scenarios are exempt from the ban on misappropriation in Berlin – provided the associated conditions are met.
Note: Although the Misappropriation Act is not in force in the following scenarios, a registration number must always be applied for.
Scenario 1: Temporary rental
If you own an apartment in Berlin but live somewhere else, you can let your furnished apartment for a limited period of time without a permit. The only requirement: your tenants must live in the German capital and actually use the premises. A minimum rental period is not stipulated for this, but a period of three months or more can be considered as misappropriation.
An example: your tenant is not actually a native of Berlin, but is coming to the German capital to complete his studies there. The center of his life is therefore in Berlin for the duration of his studies. And not just for a few weeks, but usually for three years – that’s the time that a bachelor’s degree at German universities usually takes.
Scenario 2: Room rental in the main residence
If you don’t want to rent your entire apartment, but only a single room, no permit is required according to the Misappropriation Act in Berlin. However, there are two conditions: Firstly, you must continue to live in the same apartment yourself. On the other hand, the “50% rule” applies: the rented living space should make up less than 50% of the total size of the apartment.
However, as soon as the room rental exceeds more than half of the living space, you are again subject to a permit requirement!
Scenario 3: Temporary rental
If you are temporarily abroad and want to rent your entire furnished apartment in Berlin to tourists in your absence, the Misappropriation Act is also invalid. However, you must also apply for a registration number in this case.
Scenario 4: Renting a commercial unit as a holiday home
There is an acute housing shortage in Berlin. At the same time, some commercial space is empty. Owners of commercial units are therefore asking themselves whether they can rent out their commercial space in Berlin as a holiday home. The answer is: yes, but only in consideration of the related legal provisions:
- A permit for the change of use must be obtained from the responsible building authority.
- Habitability must be ensured. If this is not the case at the time of rededication, appropriate conversion work is required.
- The tax office must be informed of the change in use. The reason: Commercial real estate has to be taxed differently than holiday apartments.
- The rental agreement must be adapted to the current guidelines for vacation rentals.
- All owners must agree to the reallocation.
However, as soon as all of these legal hurdles have been cleared, property owners of commercial space benefit from a major advantage: the Misappropriation Act in Berlin does not apply in this case either.
What are the consequences of the law for renting out a holiday apartment in Berlin?
In Berlin, complete apartments can no longer be rented to holidaymakers. Official approval is required for this. However, the application for permission for improper use is not always granted. The misappropriation as a holiday home in Berlin will only be approved if there are public interests (e.g. conversion of the living space into day-care centers) or private interests worthy of protection (e.g. protection against threats to economic existence) in maintaining the living space.
If you have received permission to rent out your holiday home, you can opt for a professional holiday home management company – you are booking an all-round carefree package.
However, owners can rent their main residence to tourists for up to 60 days a year without a permit. However, such a rental must still be reported to the responsible district office – by means of a registration number. In this way, authorities can always check the number of rented days.
Approval for a misappropriation in Berlin
With the entry into force of the Misappropriation Act in Berlin, the living space – with the exception of the previous scenarios – may only be used with an official permit for purposes other than permanent living. Approval must be applied for at the responsible district office in whose Berlin district the apartment is located.
When is a permit required?
A permit is required when housing is used for purposes other than housing for more than 60 days. Get a permit if you…
- Want to rent out your condominium as a holiday apartment in Berlin – repeatedly, for a fee and measured by days or weeks.
- want to use your living space for commercial or professional purposes (e.g. as an office or practice).
- You want to structurally change your property(s) in such a way that living in the individual rooms becomes impossible.
- Leave your living space empty for more than three months.
- want to completely demolish your property(s).
However, as soon as all of these legal hurdles have been cleared, property owners of commercial space benefit from a major advantage: the Misappropriation Act in Berlin does not apply in this case either.
Required documents
Before you apply for a permit for the misuse of living space, you must submit all the necessary documents to the responsible Berlin district office. In order to be granted a permit, you must carefully complete the application for a permit for the alienation of living space. You must attach the following documents to this:
- Justification for the application: You must enclose a detailed justification with the application for approval as to why you would like to use your living space in Berlin for purposes other than living.
- Possibly proof of ownership: If you submit the application as the owner with the right of disposal, you must add the current extract from the land register.
- Power of attorney, if applicable: In the event that you are not the owner of the living space, a power of attorney (e.g. property management) must be presented.
- Valid rental or sublease contract, registration certificate, declaration of consent from the landlord or proof that the apartment is actually vacant
- If applicable, proof of your main residence in Berlin
- Living space calculation according to § 42 of the Second Calculation Ordinance
After successful receipt of a permit, you will also receive a corresponding registration number. Since August 1st, 2018, this must be stated publicly in offers and advertisements – this also applies to advertising on internet portals (e.g. Airbnb).
As soon as the first bookings begin to arrive, you should definitely not forget to clean your holiday apartment in Berlin. After all, the premises must be in good condition so that your holiday guests are completely satisfied.
Misappropriation Act Berlin – what happens if it is violated?
A breach of the Misappropriation Act in Berlin is equivalent to an administrative offence. In Berlin, this is punished with a fine of up to €500,000. Likewise, if you do not provide the registration number you received, you must expect a fine of up to €250,000. Other consequences that a breach of the Misappropriation Act in Berlin can entail are as follows:
- The district office can require the owner to return the living space to a permanent oneWohnzweck zugeführt wird.
- The district office can demand the evacuation of the living quarters.
- The owner can be forced to undo the structural changes that have been made.
Rent holiday apartment
Misappropriation Act in Berlin for adequate living space
In order to specifically counteract a further shortage of living space in Berlin and, in particular, to get the increasing number of holiday apartments in the German capital under control, the Misappropriation Act was enacted in Berlin. Apart from a few exceptions, Berlin apartments can only be used for other purposes with official approval. In this way, it should be possible to create adequate living space in Berlin again.
Author: Malte Herbst
Founder & CEO
Our experience pays off – from the professional (online) marketing of your property to competent guest communication and conscientious maintenance of your holiday accommodation.