Due to the corona crisis, the number of air passengers from and to the Netherlands dropped by more than 70% in 2020. Logically, this has a direct impact on the occupancy rate of hotels, which has also dropped by more than 70%. It is not surprising that clients ask me whether they may be allowed to use their hotels temporarily for occupation, for example to house expats or students.
Whether this is allowed depends largely on for how long a person is allowed to stay at the hotel, and what the zoning plan says exactly about the various types of stay.
As a rule, you can very boldly assume that a hotel is a place in which commercial temporary lodging is offered to persons who have their main residence elsewhere. Usually such stays are for a duration of one night up to one week maximum. “Short stay/extended stay” is often understood as the commercial offering of lodging for stays of at least one week up to a maximum of six months or one year. Residing, on the other hand, comes with a certain durability, often with a duration of six months or one year.
As mentioned above, these are the rules of thumb. In a specific zoning plan it has to be considered on a case-by-case basis whether the several types or use have been defined, and what these definitions permit. If the zoning plan has no definitions, or very general or vague ones, Dutch case law may be referred to.
Zoning plan
For example, in a ruling of 26 February 2020 the highest administrative court held that if a zoning plan does not define the meaning of “residing”, common parlance must be referred to and “residing” will require a certain durability. The short duration of the stay alone is not decisive here. Other circumstances are also relevant, such as whether the lodgers are tourists whose main residence is elsewhere, or whether they receive bedding and cleaning services, and whether it was their intention to take up residence on the spot for a longer or shorter period. For short stays by persons whose main residence is elsewhere, the word ‘residing’ is seldom used.
The same court ruling also made clear that a temporary stay that takes just a little over one week (9 days) can still be regarded as a hotel rather than a short stay, even if the definition in the zoning plan says that a short stay comprises a period from one week up to six months maximum.
If it is not clear whether the temporary function desired is in line with the zoning plan, this does not make a change of function impossible. An environment permit for this purpose can be applied for. It is possible to apply for a minor derogation (in Dutch: kruimelafwijking) for the new function. This procedure takes 8 weeks (with a renewal option of 6 weeks). Upon expiry of this term, a permit will arise by operation of law.
Change of function
In its assessment, the Municipal Executive weighs the interests of the hotel in changing the function against the (spatial) interest of the surroundings. A different option, which might help achieve an outcome in favour of the function change, is to apply for a temporary permit for a function change, e.g. for the duration of one year. The spatial impact of such a temporary function change is smaller, whereas the interest of being able to use the hotel for a different function in this difficult period is great.
Incidentally, all the above holds for all other creative temporary functions as well: have the zoning plan checked for options and, if necessary, apply for a (temporary) permit for the derogating function.
Should you have any questions after reading this article, please contact Loes ter Meer, member of our Hospitality Team.
