Renting through Airbnb: legal consultation and tax concerns for landlords
If you plan to rent out an apartment or house through the platform Airbnb, there are tax law questions to answer, a planning permission for a change of use has to be acquired, and a special exemption for misuse has to be applied for. I can gladly give you preliminary information on this site. For a consultation tailored to your situation, simply call me and make an appointment.
Introduction to renting with Airbnb
Depending on whether you are the owner of the object or a tenant, there are different challenges. While tenants generally need permission from their landlords to sublet to third parties, the owner has to coordinate with the owners’ association.
What is Airbnb and how does the renting work?
Airbnb understands itself as an intermediary between host and guest. For facilitating this contact, Airbnb gets a part of the host’s income. The relevant contract however is formed between host and guest. The guest is connected to you by Airbnb and you have no options to choose your guests. Therefore, you should take a consultation with me to find out whether Airbnb is the correct platform for you at all or whether you’d prefer retaining the ability of choosing your contract partners yourself.
Advantages and disadvantages of renting through Airbnb
A crucial advantage of Airbnb is certainly the possibility of very high income through renting out by day compared to long-term renting. You can also usually get rid of less liked tenants within short times and can spread your rent payments across several shoulders.
Short-term renting also has its challenges. You have to instruct your guests about the rules of the house and keep the rented rooms clean more often, as this is a service expected by Airbnb. Especially in larger cities there are a lot of providers and therefore high competition.
Legal conditions for Airbnb-landlords
Here I will cover questions in building law, civil law, and administrative law that need to be considered.
Which laws have to be paid attention to?
From a building law perspective, renting residential space to changing overnight guests is no longer considered residential use, but a hospitality business. This requires a planning permission for a change of use. This can be best gotten through an outline planning application at the responsible office.
In civil law, you have to get permission from either your landlord or your owners’ association, otherwise you risk termination of your rent contract or prohibition of use by the owners’ association.
Mind also that the frequent change in overnight guests can impact the peace of the house and that it can be demanded that you put an end to it.
In administrative law, it is worth glancing at the misuse prohibition law of your federal state. It determines under what circumstances residential space can be misused for hospitality. Usually there are conditions that aim to limit renting out of the apartment to a few weeks per year. There can also be the condition that only a part of the apartment can be rented out or that a minimum of nights per tenant is set, in consideration of the neighbourhood.
Notification requirements, fire protection conditions, etc.
Your hospitality business has to be registered. When requesting the planning permission, the office will demand measures for fire protection or sufficient parking places. There a thorough consideration of the individual case is needed.
Importance of a legal consultation for landlords to avoid possible legal disputes
Only through a consultation prior to renting out you can avoid sanctions by the offices. However, I will also gladly support you if a self-report needs to be made to the tax office or renting without permission is to be revealed. Usually, I can shorten the process through my experience in dealing with public offices and can achieve lowered sanctions for my clients or the dismissal of filed charges.
I will gladly advise you!
Book an appointment for a free initial assessment or contact me by phone, e-mail or via my contact form:
Lawyer Christian Janssen from Berlin
Tax aspects in renting through Airbnb
There are a number of tax challenges regarding subletting that I want to briefly explain here. An individual consultation can only be done by appointment.
Hints for optimising your taxes for Airbnb-renting
Especially owners benefit from renting, as the depreciation of your object leads to an excess of professional expenses that noticeably lowers the tax burden on your other income.
Risks when renting through Airbnb
What can go wrong with renting and how can landlords protect themselves?
Please keep in mind that the German and Irish tax offices cooperate with each other. All data of landlords in Germany on the Irish-based Airbnb are transferred and therefore it is only a matter of time until your tax office learns of your rent activities.
For that reason, a self-report with exemption from punishment should be considered.
Aside from that, the frequent change of overnight guests can lead to neighbourhood conflicts that not rarely have to be settled by the police. It is possible that you as the landlord and therefore as the initiator of the police measures will be asked to cover the costs of the police operation.
Assistance by a lawyer
How can a lawyer help with renting through Airbnb and what services does the firm offer?
My consultation already begins before the first booking. I will explain the chances and risks for your individual case and look at contracts and land-use plans for this.
If there are conflicts with the landlord or owners’ association, I will help mediate out of or if needed in court.
If a public office hinders the permission of your endeavour, I support you with my experience all across Germany in this area of law.
If the tax office has filed charges for tax fraud, I will help you to get the charges dismissed as quietly as possible and thus avoid further displeasure through a public hearing.
Conclusion – the most important aspects around renting through Airbnb
The legal problems are varied and therefore your advisor should also have varied expertise and competence. I am often asked for legal expertise by tax consultants and other lawyers and can therefore support you quickly and straightforwardly even in ongoing proceedings. You benefit from my expertise in the intersections of several areas of law. I have not specialised my legal consultation on any one area of law, but shaped my holistic consultation concept along the needs of my target audience.
Legal updates
Here a selection of relevant decisions to underline everything written above.
- OVG Berlin-Brandenburg (5. Senat), decision from 15.03.2021 – OVG 5 B 9.18 about requests for information with threat of fines in the area of misuse laws.
- LG Amberg: Subletting through the „Airbnb“-model: requirement of warning before extraordinary termination (NZM 2018, 34)
- Rent platform hast to give information about private accommodations to city of Cologne (becklink 2019602)
- OLG Frankfurt am Main confirms fine for renting out of residential space as vacation home without permission
- LG Berlin: renting out through „airbnb“ justifies termination with immediate effect (becklink 1037064)
- AG München, 33.000 Euro fine for misuse of residential space (FD-StrafR 2018, 407099)
- OVG Berlin-Brandenburg (5. Senat), decision from 04.11.2022 – OVG 5 B 2/20
- Return notice with threat of fines in misuse law
- VGH München: Misuse: the urbane stewardess hosting strangers in her “everyday home” in Munich (NZM 2021, 81)
Other areas of law
Inheritance law
I would also be happy to execute your will on your behalf. I would also be happy to advise you on gifts and the tax implications of anticipated succession.
Pension law
I would also be happy to assist you in drawing up your own personal living will, health care proxy, and power of attorney.
