rental-property germany homeownership
Can a German declaration of division (Teliungserkl&#228;rung) or community ordinance (Gemeinschaftsordnung) prohibit long-term rentals?
<p>Consider an apartment block consisting of three equal units A, B, and C, located in Bavaria, Germany.  At present, all are owner-occupied and the Community of Apartment Owners (<em>Wohnungseigentümergemeinschaft</em>) has three members Asani, Bahar, and Camille, with equal power.  Units B and C are on the market and are bought by Diya, who decides to rent them out.  Now Asani finds himself having a minority in the Community of Apartment Owners and, as an owner-occupier, having other needs and interests than Diya, but Diya can possibly push through or block any decisions taken by majority vote (depending on the specifics in the declaration of division (<em>Teilungserklärung</em>), a person owning two units may have either one or two votes).  This situation is not desirable for Asani.</p>
<p>Is it legally possible in Bavaria, Germany, to enact a rule that restricts the rights of owners to rent out their property long-term?  For example, could it contain</p>
<ul>
<li>a rule that every owner must live in their property, or</li>
<li>that the majority of homes must be owner-occupied, or</li>
<li>that new rentals are not allowed, or</li>
<li>that everyone who owns a property in the building must also live in the building, or</li>
<li>something similar?</li>
</ul>
<p>Such a rule would need to be changeable only by unanimous consent, otherwise Diya owning two out of three properties could simply abolish the rule, so Asani, Bahar, and Camille would together agree on such a rule (perhaps Asani would pay Bahar and Camille in case they fear the rule might reduce the sale value, but that is separate from the legal question).</p>
<p>I've searched the web about restrictions on renting out, but all I find is either about restrictions on <em>short-term</em> (holiday) rentals, or about owner-occupiers objecting to <em>specific</em> prospective tenants.  I couldn't find anything about the possibility to restrict long-term rentals <em>in general</em>.  Is there any law that would prevent the rules governing the property as a whole (such as the Declaration of Division (<em>Teilungserklärung</em>) or the Community Ordinance (<em>Gemeinschaftsordnung</em>)) from containing such a restriction?</p>
<p>I am primarily interested in the situation in Bavaria, Germany, but for context it's also interesting to know the situation elsewhere.</p>

<p>Yes, you can put <em>pretty much anything</em> you like into the co-op statutes.
You are actually interested in whether it <em>makes a difference</em>, though, whether the sheriff will come enforce a court order if it came to a trial.</p>
<blockquote>
<ul>
<li>a rule that every owner must live in their property, or</li>
<li>that everyone who owns a property in the building must also live in the building, or</li>
</ul>
</blockquote>
<p>By virtue of indirect effect of basic rights (<em>mittelbarer Wirkung von Grundrechten</em>) a court will never issue an order mandating Diya to live in her apartment, Art. 11 GG.
The sheriff will not forcefully “shove” her into her apartment:
“You <em>must</em> live here now!”</p>
<blockquote>
<ul>
<li>that the majority of homes must be owner-occupied, or</li>
</ul>
</blockquote>
<p>Similar, but Art. 2 I GG.
Vacancy of apartments is legal in Germany.</p>
<blockquote>
<ul>
<li>that new rentals are not allowed, or</li>
</ul>
</blockquote>
<p>As soon as Diya is recorded in the <em>Wohnungsgrundbuch</em> (apartment register) as the new owner of units B and C, she incontestably assumes the <em>role</em> of owner about said units.
If she rents them out despite the co-op statutes forbidding so, she does nothing illegal (that means breaking <em>state</em>/<em>federal</em> <em>law</em>).
After all she <em>is</em> indeed the owner, so there is no fraud involved, § 263 Ⅰ StGB.</p>
<p>The fact that she agreed to <em>not</em> rent out is a matter between Diya and the co-op.
<em>No court</em> will evict the new tenants from units B and C, because Diya has breached <em>her</em> obligations.</p>
<p>However, it <em>might</em> be a just cause to oust Diya from the co-op, § 17 WEG.
Yet still it requires <em>severe</em> grounds as it <em>essentially</em> means exercising eminent domain, Art. 14 Ⅲ GG.
I tentatively claim it won’t work out as long as Diya pays her share in maintenance and the tenants chosen by Diya are well-behaved.</p>
<blockquote>
<ul>
<li>something similar?</li>
</ul>
</blockquote>
<p>You will need something that produces <em>evidence</em>.
“Diya does not live in unit B” is a claim that needs corroboration in court.</p>
<blockquote>
<p>[…] restrict long-term rentals <em>in general</em>. […]</p>
</blockquote>
<p>Tenancy agreements are by default unlimited in time.
Short-term rents are sort of “forbidden” except if <em>justified</em> by one of the reasons named in § 575 Ⅰ BGB.
Hence restricting long-term rentals borders on a blanket-ban on <em>all</em> rentals.</p>

<p>It would seem this is not possible.</p>
<p>From the <a href="https://www.gesetze-im-internet.de/woeigg/BJNR001750951.html#BJNR001750951BJNG000102360" rel="nofollow noreferrer">Gesetz über das Wohnungseigentum und das Dauerwohnrecht (Wohnungseigentumsgesetz - WEG)</a> (Act on the Ownership of Apartments and the Permanent Residential Right):</p>
<blockquote>
<p>§ 13 Rechte des Wohnungseigentümers aus dem Sondereigentum<br />
(1) Jeder Wohnungseigentümer kann, soweit nicht das Gesetz entgegensteht, mit seinem Sondereigentum nach Belieben verfahren, insbesondere dieses bewohnen, vermieten, verpachten oder in sonstiger Weise nutzen, und andere von Einwirkungen ausschließen.</p>
</blockquote>
<p>From the <a href="https://www.gesetze-im-internet.de/englisch_woeigg/englisch_woeigg.html#p0050" rel="nofollow noreferrer">translation by Iyamide Mahdi in cooperation with the Language Service of the Federal Ministry of Justice</a> (based on an older version of the law, but this paragraph appears to not have changed):</p>
<blockquote>
<p>§ 13 Rights of the Apartment Owners<br />
(1) Every apartment owner shall have the right, in the absence of conflicting laws or third party rights, to deal at will with the parts of the building forming part of the separately owned property and in particular to occupy them, rent them out, lease them out or use them in any other manner, and to exclude others from interfering.</p>
</blockquote>
<p>I am not a lawyer, but from my reading, it is not possible to restrict by declaration of division or community ordinance the rights of owners to rent out or lease out their property.</p>
