16 November 2015

Short-term rent a basic right?

Short-stays in cities has triggered local rules to restrict short term rental to tourist. Given the significant rise of short term rental activity that has been seen in recent years, cities around the world are looking at ways to reform their regulations or have already taken actions to do so. Has the local government or even de federal government the authority to do so. Real estate lawyer wonders how rental restrictions in Europe are within the scope of article 1 of Protocol 1 to the ECHR, the right to property: every natural or legal person is entitled to the peaceful enjoyment of his possessions. Case law of short-term rent will undoubtedly develop, since home-owners are subject to disproportioante law enforcement against short-term rent. Read also: Amsterdam short stay rent.

Short term rent and basic rights (European Treaty ECHR)

Every natural or legal person, including the owner of property suitable for rent, is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The enjoyment of possessions is guaranteed, but this guarantee is not without limits.

A home-owner providing short-stay rent

Qwnershp of a house entails the right to rent the house (or part of the house) to someone else. Especially if such rent is a source of income is is a basis right (to exploit your) property the way you wish. If your hous is in an big city that attracts tourist you may wish to rent your house to tourist now and then. Restricting this right, like in Amsterdam where rent to tourists is restricted to only 60 days per year, means limitation of your to property. At the moment such a restriction is not founded in the law. Only local policy is used to enforce this restriction. Home-owners should try and fight this local restriction against short-stay. Article 1 EP only allows government restrictions on the right to property within an margin of appreciation. The interference must not impose an excessive or disproportionate burden on the individual.

Short stay restriction infringement of basic rights?

The right to rent your property may not impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. So a law or statute should be should be implemented which may not be the case in a lot of countries where local government have issued policies which do not qualify as a statute under the Treaty. The principle of a fair balance requires that the interests of the individual affected by measure interfering with the right to property have to be pondered with the interests of the general public.

Has a tenant the right to sublet to a tourist ?

A tenant is bound to the provisions of the rental agreement. The agreement may allow subletting or not. Above that a system of public law may apply on the tenant; for example he may need (a have) a housing permit. Such rules of public law may restrict the right to sublet. Suppose there are no restrictions for the tenant to sublet then the tenant’s position is similar to the owner of property. Can local government restrict your right as a tenant to sublet your rented home or apartment? It’s worthwhile to check if local government violates the law to enforce fresh rules against short-stay rent. In the Netherlands a right to sublet a part of the rented living space is even a basic right stipulated in article 7:244 the Dutch Civil code. This right may be contracted out. But if that’s not the case a local government can not deprive the tenant of this civil right to sublet a part of your (rented) home.