Holiday rental use in pure residential areas: Holiday apartments with building permission for "residential" use not automatically permitted

Legal background of holiday rental use: Distinction between permanent residential use and holiday rental use in building planning law

The question of whether an apartment may be used as a holiday apartment is of considerable practical significance under building planning law. In many municipalities, the tourist use of residential space conflicts with the planning objectives of the Baunutzungsverordnung (BauNVO). Whilst permanent residential use typically corresponds to the central purpose of a residential area, use as a holiday apartment may, due to short-term letting to constantly changing guests, constitute a separate category of use.

The situation is particularly restrictive in pure residential areas pursuant to § 3 BauNVO. These areas are intended to serve almost exclusively for permanent residential use. Tourist uses are permitted there only exceptionally as a matter of principle and regularly require an express permission or change of use.

Against this background, the question frequently arises as to how a building permission for a residential building is to be interpreted: Does it cover only permanent residential use or may it also encompass use as a holiday apartment? The Higher Administrative Court of Lower Saxony (Oberverwaltungsgericht Niedersachsen) had to deal with this issue in its ruling of 04.03.2026 – 1 LA 64/25.

What was at issue: Prohibition of use due to holiday rental use

The plaintiffs are owners of a property developed with a multi-family house with six residential units. The property is located within the scope of a development plan from 1964, which designates this area as a pure residential area (WR).

The original building permission from 2007 concerned the construction of a residential building with six residential units and an ancillary building. In 2008, the builders applied for a supplementary permit to the building permission, which related essentially to structural modifications, such as a change of location of the building, the omission of the basement storey and the installation of additional toilet facilities in the attics.

In the context of this supplementary procedure, the builder stated in a letter to the building authority that the apartments were designed for four persons each and were to be let to constantly changing holiday guests. This letter became part of the administrative file and was marked with a green stamp "File".

However, an express permission for holiday rental use was neither applied for nor granted.

The owners nevertheless used the apartments as holiday apartments for many years. In 2021, the building authority prohibited this use by decision and ordered immediate enforcement. In its reasoning, it stated that the building had been approved exclusively for permanent residential use. Use as holiday apartments therefore constituted a use that requires permission.

The action brought against this was unsuccessful before the Administrative Court of Stade (Verwaltungsgericht Stade). Against the judgment, the owners applied for permission to lodge an appealat the Higher Administrative Court (OVG) Niedersachsen.

Legal assessment by the Higher Administrative Court

The Higher Administrative Court (OVG) Niedersachsen rejected the application for admission of the appeal and thereby confirmed the decision of the lower court.

Decisive factors are the building application and the approved building plans

The court first clarified that the content of a building permit is generally determined by the building application of the building owner. Additionally, the approved building plans are to be consulted, insofar as these have become part of the permit by means of a corresponding approval note – regularly in the form of a green stamp with approval note – become part of the permit.

In the present case, the project was clearly described in all relevant documents as "new construction of a multi-family residential building with six residential units". Tourist use was not included in either the building application or the building description.

The supplementary permit from 2008 also referred exclusively to structural modifications. A change of use to holiday apartment use was not provided for there.

Explanatory letter is not an application for change of use

The claimants argued that their letter from May 2008 implicitly contained at least an application for approval of holiday apartment use.

The court did not follow this argument. According to the view of the OVG, the formulation contained therein, to the effect that the apartments were to be let to holiday guests, was merely a descriptive explanation. Such a statement could not be understood as an application for change of use.

In particular, a merely explanatory letter could not subsequently extend the clearly defined content of the building application.

Significance of the green stamp

A central point of the decision concerns the significance of the green stamp in building files. The claimants had argued that by stamping their letter, it had become part of the building permit.

The court clarified in this regard that a distinction must be drawn between two different functions:

A green stamp with approval note makes building plans part of the building permit.

A green stamp "file" merely documents that a document is part of the administrative file.

Since the disputed letter merely bore a file stamp, no approval of holiday apartment use could be derived from it.

Holiday apartment use is not automatically encompassed by the concept of residential use

The Higher Administrative Court simultaneously confirmed its previous case law on the interpretation of residential uses. According to this, a permit for a residential building can in individual cases encompass both permanent residence and holiday apartment use. However, particular indications must be present for this, for example in the permit itself or in the permit procedure.

Such indications were completely lacking here. The court therefore emphasised that a permit for a residential building is generally to be understood as a permit for permanent residence.

Building planning law inadmissibility of holiday apartment use

Furthermore, the property is located in a pure residential area according to § 3 BauNVO. Holiday apartments may regularly not be permitted there as small accommodation businesses if no typical accommodation-related services are provided.

Thus the use was not only formally unlawful, but its permissibility was also far from obvious.

The application for leave to appeal was therefore rejected; the judgment of the Administrative Court became final.

Significance of the decision for practice

The decision illustrates how strictly courts interpret the content of a building permission. For practice, several important consequences arise:

A permission for a residential building regularly means permission for permanent residential use.

A holiday letting use often constitutes a separate type of use.

It therefore regularly requires an express permission or change of use.

Mere references in construction documents or covering letters are insufficient for this purpose.

Particularly in purely residential areas, holiday letting use is furthermore often not permitted under planning law.

Recommendations for action for owners and project developers

Owners should already clearly establish in the building permission procedure what use is intended. Anyone wishing to operate a property as a holiday letting should expressly document this in the building application and building description and request a corresponding change of use.

If holiday letting use is commenced without appropriate permission, there is a risk of orders prohibiting use, enforcement penalties and, where applicable, costly administrative court proceedings.

Advice on public building law

Questions concerning the permissibility of holiday lettings, the holiday letting use, the interpretation of building permissions, changes of use or the defence against building supervision measures require a well-founded administrative law analysis.

Our law firm, which specializes inter alia in administrative law , AVANTCORE Rechtsanwälte in Stuttgart advises owners, project developers and companies nationwide on legally sound planning of construction projects, as well as municipal law classification of uses and judicial enforcement of their rights against building authorities.