Bavarian administrative court imposes limits on the city of Munich’s right to misappropriate property

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If the Munich Administrative Court dismissed mhomes’ claims against this in the first instance, the BayVGH, in its decision of 20 November 2023, ref. 12 ZB 21.2188, has now allowed an appeal in the second instance. Instance allowed the appeal. The decision stated that there is no (commercial) letting for the purpose of tourist accommodation, but rather a residential use that is generally permitted under misappropriation law if (other) persons live in a flat – e.g. in the form of a ‘shared flat’ or a ‘co-living space’ – who each have their own bedroom that allows sufficient privacy, while the living room, kitchen, bathroom and hallway are shared. According to the BayVGH, the fact that the use of a flat is only intended for a limited period of time as a home in everyday life and not for an indefinite period of time does not change the fulfilment of the concept of living. According to the BayVGH, renting out a room in a shared flat, for example to an employee who is staying in a municipality on the occasion of a work assignment and during this time not only establishes a home in everyday life, but usually even (temporarily) establishes the centre of his or her life in this community, is regularly not to be qualified as tourist accommodation, but as living – with the result that the assumption of misappropriation cannot be considered.

The BayVGH thus sets clear limits for the City of Munich as the competent administrative authority with regard to the application of the misappropriation statute to constellations such as the one described above. The prohibition on misappropriation is merely limited to ‘the protection of existing residential space’. According to current case law of the BayVGH, however, it expressly does not give the City of Munich the right to define certain forms of housing in terms of their ‘value’ and to discriminate against others, especially those of longer duration, or even to regard them as ‘socially harmful’ and therefore ‘worthy of combating’. According to the BayVGH in its recent ruling, the law on misappropriation does not permit housing management, nor may it be used as a means of preventing ‘generally undesirable and harmful developments’ on the housing market.

Representative mhomes
SNP Schlawien Partnerschaft mbB, Munich: Florian Grasser (real estate law)

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