The deliberation of March 5, 2022 establishes new rules for the change of use of housing, in the 24 municipalities of the tense zone (1). The device makes it very difficult to convert…
The deliberation of March 5, 2022 establishes new rules for the change of use of housing, in the 24 municipalities of the tense zone (1). The system makes it very restrictive to convert year-round rentals into vacation rentals. In a large number of cases and for all secondary residences, the owner must create a new dwelling from a commercial premises, office or garage. It will offer it on the classic rental market, in compensation for that switched to a commercial offer.
” Almost impossible “
We consider that the compensation measure, as provided for in the Basque Country, is a restriction of the right of property
Me Victor Steinberg defends the interests of the applicants. Individuals or professionals benefiting from this section of tourist activity. Some have federated within the Union of furnished tourism rental companies in the Basque Country (ULMT 64). The entity is not a month old. In the same battle, individuals and companies. Their advice notes an “extremely strict” regulation, a “particularly costly” obligation.
In fact, compensation will be “almost impossible” in view of the “particularly small number of premises likely to be transformed”. “Especially since the regulations of the Agglomeration exclude commercial premises on the ground floor. »
The lawyer for the “hosts” and other concierges will unfold two areas of dispute before the courts: “We consider that the compensation measure, as provided for in the Basque Country, is a restriction of the right of ownership, registered in the Declaration of the rights of man and citizen. This compensation also comes up against the principle of freedom to provide services, guaranteed by European law. »
This obligation effectively responds to a shortage of housing, the demand for housing intended for habitation under acceptable economic conditions […] to be satisfied
This second point has already been raised in another case, last year, in Paris. At the time, already, owners of tourist accommodation disputed the compensation as implemented in the capital. The procedure rebounded until in cassation. In its judgment of February 18, 2021, the high court confirmed the regulatory mechanism. To do this, it previously posed a “prejudicial question” to the Court of Justice of the European Union (CJEU): does the compensation affect, in the Parisian case, the European directive which guarantees the principle of “free delivery” of services?
The CJEU considered not, insofar as “an overriding reason of general interest” justifies it. The compensation measure must also be “proportionate to the objective pursued”. This was indeed the case in Paris, according to the court. “This obligation effectively responds to a shortage of housing, the demand for housing intended for habitation under acceptable economic conditions […] to be satisfied,” she said.
Victor Steinberg is well aware of this decision: he was also defending applicants there. “The Parisian market and that of the Basque Country are not the same, they are two very different situations”, he pleads. “Reality is more tense in Paris than in the Basque Country. In other words, the general interest must be assessed on a case-by-case basis and the position of the Court of Cassation would not be worth case law. The lawyer also considers that the Audap study (2) on which the Agglomeration is based is not sufficient to support the need for compensation in the Basque Country. That “the expected results are too hypothetical” with regard to the constraint.
The famous Audap study notably noted a 130% explosion in 5 years in the number of tourist accommodation offered on the Airbnb and Abritel platforms. It underlined the scarcity of housing intended for year-round rental. Connected the two facts.
The figures, the right of ownership, the notion of general interest, of proportionality: all of this will be discussed during future substantive debates. But before that, the summary procedure aims, within fifteen days, to neutralize the compensation in the Basque Country. This is to come into force on 1er June.