DECISION OF M.P.NAUPLIOU: PROHIBITION OF PROFESSIONAL USE, NOT SHORT-TERM LEASING!

The reasons are as follows:

The legal framework for short-term housing leases in the context of the “sharing economy” concluded through digital platforms in our country is determined by article 111 of Law 4446/2016, as amended by article 36 of Law 4465/2017, Official Gazette A 47/4.4.2017 and as finally replaced by Articles 83 and 84 of Law 4472/2017 (Official Gazette A 74/19.5.2017). It is clear that these leases, as long as no additional services are provided, legally constitute a special category of urban leases for residential uses in the form of temporary accommodation, in which the lessor can be any natural or legal person, without restriction by incompatible etc., and without fiscal or legal acquires a commercial or professional status or must obtain a separate KAD (Activity Code Number).

These leases are clearly differentiated from <leases of tourist accommodation according to Law 4276/2014, and in particular with the licensed “Furnished rooms for rent – apartments” of para. cc of article 1 of the above law, which are rented out exclusively as business activity and is accompanied by the provision of other services, which is expressly prohibited by the provisions on short-term leases of Law 4446/2016, article 111. These leases are also differentiated in that short-term tenants are not liable for VAT, nor accommodation tax, in stark contrast to tenants of “Furnished Rooms for Rent” who owe both.   

Furthermore, according to article 39 A added to the Income Tax Code (L. 4172/2013) the tax treatment of income from short-term real estate rental in the context of the sharing economy is as follows:

“1. The income obtained, by natural persons, from the short-term rental of property in the sharing economy is income from real estate and the provisions of article 39 and paragraph 4 of article 40 of Law 4172/2013 apply, as they apply, as long as the properties are rented furnished without the provision of any service other than the provision of bed linen. …….. In the event that any other services are provided, this income is taxed as deriving from business activity under Article 21 of Law 4172/2013, as applicable.

2. The income obtained by legal persons or legal entities, from the short-term rental of property of the sharing economy, as defined in the previous paragraph, it is considered income from immovable property.
3. The income obtained within the framework of the provisions of article 39A of Law 4172/2013 (Α΄167)is exempted of VAT.
4. Tenants of short-term leases are exempt from the accommodation fee.”

The judgment of the Court weighed on the provision of the regulation of the apartment building for the prohibition of use as a hotel, as well as any kind of disturbance of the building’s occupants from excessive noises, etc., and its violations that were suspected in the absence of the respective hearing procedure.  See a detailed commentary of here.

Consequently, in principle, this decision concerns the specific apartment building, with the specific regulation and the specific excessive professional use of the apartment beyond the limits set by the legislation for short-term rentals. 

-align: justify;”>Excerpt of decision number 263/2019 of the Mon. Court of First Instance of Nafplio:

“From the assessment of the sworn witness testimony of the applicants in the audience and from the documents presented, the following facts: The applicants are owners, legal entities and owners of independent horizontal properties of an apartment building with a basement that was built on a plot of land of the city of Nafplio and is governed by the deed of establishment of horizontal property and regulation of co-owner relations, by which the shared and jointly owned areas were defined, the areas of exclusive use of each co-owner as well as the restrictions on the use of the common parts and the divided independent properties and which formed an integral part of the property title of each of the co-owners.

It was also assumed that the defendant, at the beginning of August 2019, registered the aforementioned property in tourist professional booking guides and related websites with the distinctive title “big apartment” as atourist business – accommodation, and since then she has been operating her property as a tourist accommodation, renting it out furnished.

Also also provides other services, such as the reception and provision of tourist instructions and guided tours, while organizing the arrival and departure of visitors, especially when there are successive visitors, who can be together on the same day, and for these services provides special charges, except of the overnight stay price. According to the listing posted in tourist guides, up to 10 guests can be accommodated in the defendant’s property, but in reality there are more people staying, who change every two to three days, as the applicants have found.

Guests, who are usually large families or large groups, bother during their stay at apartment, as well as in the common areas of the building, even during quiet hours, they leave their waste in the common areas, while many times they occupy, with their vehicles, the parking spaces of the other co-owners of the apartment building, infringing on their exclusive uses of the places that are annexes of their properties and obstructing their own parking.

Also during the summer months, the guests of thehouse make long hours of use of a specific common area (s.s. shared swimming pool), which the defendant advertises in her listing as a provision of her apartment, excluding the applicants from its free use

Furthermore, it was assumed that the defendant, in order to facilitate the access of her visitors to the rented apartment, grants them the security code of the two central entrances of the apartment building, with the consequence that the applicants are in daily contact with an unknown number of persons who change every two to three days.

This fact has, justifiably, caused intense insecurity among the applicants, who they are concerned about their integrity, the safety of their minor children and their assets.

From the overview the deed of horizontal ownership and co-owner relations regulation, in article 4 thereof, it is defined that “1 For any question or doubt as to the correct and legal use of the horizontal properties, it is clarified that the use of the apartments as dance centers, schools, hotels is prohibited , conservatories, dance schools or rhythm schools and in general any use dangerous to the safety of the building and which disturbs its occupants, causes excessive noise or odors or is contrary to the laws, police regulations and morals or disturbs the peace and safety of the occupants of the building, or which offends family, moral and social order and decency…”.

From what was mentioned above, it was assumed that the defendant uses her property for a purpose other than that of residence, specifically as a tourist accommodation, which fits the concept of a hotel, since it accommodates an unknown number of people who rotate at regular intervals of a few days , in violation of the aforementioned Regulation.

Consequently, the application must be accepted and as substantially valid, the defendant must be obliged to ceases to violate the regulation of the establishment of the apartment building and specifically to cease and not to repeat in the future the professional use of the horizontal property – apartment, of which she is the owner, as tourist accommodation and to limit herself to the use of this as a residence . specifically defined in the ordinance. She must also be ordered to pay the applicants’ court costs as set out below.

FOR THESE REASONS

TRUDIES in the absence of the defendant.

ACCEPTS the application.

FORCES the defendant to stop violating the regulation of the establishment of the apartment building, which is located in Nafplio, on the street ….. and specifically to cease and not to repeat in the future the professional use of the horizontal property – apartment, of which she is the owner, as a tourist accommodation and to limit herself to the use of it as a residence.