No Retroactive Legalisation of Secondary residences in Salzburg

Aug 5, 2022 Benn-Ibler Rechtsanwälte

The Austrian Constitutional Court (Verfassungsgerichtshof, VfGH) has annulled the retroactive legalisation of secondary residences contained in the Salzburg Regional Planning Act 2009 (Sbg ROG 2009), as amended after the 2017 ROG amendment, as being contrary to the principle of equality.

Under the old regulatory system, secondary residences were generally not permitted. However, this was subject to a general enablement proviso, according to which secondary residences were permitted in designated secondary residence areas (Section 31 (1) Sbg ROG 2009, former version).

Under the new regulatory system, secondary residences are generally permissible unless certain restrictions apply: Secondary residence restriction municipalities or areas (Section 31 para 1 Sbg ROG 2009 new). However, Section 31(2)(5) in conjunction with Section 86(15) Sbg ROG 2009 makes an exception to this, as follows:

Residences that were previously being used as secondary residences in an inadmissible manner under the old regulatory system may now be used as secondary residences under the new regulatory system if the following conditions are met, irrespective of whether the other requirements for a permissible use of a secondary residence under the new regulatory system are complied with:

• The owner must have lawfully used the residence as a secondary residence between 1 January 2019 and the date on which the owner notified the municipality in writing of the use of the residence as a secondary residence in accordance with the Building and Zoning Code of the federal province of Salzburg.
• For this it is sufficient that the utilisation of the residence for living or sleeping (=which is considered to be utilisation as a secondary residence) purposes was discontinued for even a short period of time.
• In addition, the purchase of the residence must have been made more than three years prior to the reporting date.

This ‘legalisation effect’ is limited to the degree that residences may not be transferred under ownership law for secondary residence purposes or leased under tenancy agreements.

The Constitutional Court considered this to be contrary to the principle of equality because, against the backdrop of the objectives of the ROG, there is no objective justification for precisely this partial exemption from restrictions on secondary residences.

VfGH (Verfassungsgerichtshof) G 366/2021-9 (30.06.2022)