Misappropriation of living space; application for a permit

In municipalities that have issued a misappropriation statute, residential space may only be used for purposes other than residential purposes with official approval.

The Act on the Prohibition of Misappropriation of Housing (Zweckentfremdungsgesetz - ZwEWG) of 10 December 2007, which was last amended by the Act of 19 June 2017, authorizes municipalities with tight housing markets to stipulate by statute that housing may only be used for non-residential purposes with their approval. The municipality itself decides whether there is actually a housing shortage in the municipal area and whether these tensions cannot be countered with other measures.

According to Art. 1 sentence 2 ZwEWG, misappropriation is deemed to have occurred in particular if more than 50 percent of the total area of the residential space is used or provided for commercial or professional purposes (e.g. as a law firm or physiotherapy practice), is used for tourist accommodation purposes for more than a total of eight weeks in a calendar year (e.g. rented out to tourists several times at short notice via internet portals) or is vacant for more than three months.

Details, in particular whether and with what content the municipality has issued a misappropriation statute, can be obtained from the municipality itself.

Permission must be granted if overriding public interests or private interests worthy of protection outweigh the interest in preserving the living space. It may be granted in exceptional cases if, for example, replacement living space is created for the loss of the living space or a compensation payment is made. Further details can be found in the respective municipal bylaws on misappropriation.

It is at the discretion of the respective municipality to charge administrative costs for the implementation of the ZwEWG. A cost statute is required as the legal basis for charging costs.