VwGH: Airbnb’s ‘Commercial Use’ As Defined by the Vienna Building Code

Aug 26, 2022 Benn-Ibler Rechtsanwälte

The Austrian Administrative Court (Verwaltungsgerichtshof, VwGH) has ruled that in determining commercial use for short-term accommodation purposes (e.g. on Booking.com and Airbnb) within the scope of Section 7a (3) of the Vienna Building Code, a concept of commercial character deviating from the 1994 Commercial Code shall be applied.

The appellant is the owner of a building in Vienna’s 1st District. The building is located in a hybrid construction area of a residential zone. The Magistrate of the City of Vienna charged the appellant to refrain from the commercial use of the common rooms of several apartments for short-term accommodation purposes (i.e., rental mainly via booking.com or Airbnb) because Section 7a (3) of the Vienna Building Code (Bauordnung, BO) prohibits this.

The Vienna Regional Administrative Court ruled in favour of the City of Vienna. Before the Austrian Administrative Court (VwGH), the only remaining issue was the interpretation of the term ‘commercial use’ in Section 7a (3) last sub-clause of the Vienna Building Code.

According to the Administrative Court, “commercial use” is not to be understood in the context of the 1994 Commercial Code, but is used within its own meaning in the context of the Vienna Building Code. The commentary to Section 7a (3) BO states that “commercial” is to be interpreted as regular providing of accommodation for lodging purposes in return for payment. In this way, the legislator intended to set lower requirements for “commercial use” than for “business activity” as defined in the 1994 Commercial Code (the latter requires, in addition to the provision of residential accommodation, the provision of services usually associated therewith). The Building Code, on the other hand, does not call for the provision of services (such as final cleaning, provision of bed linen, on-site services, etc.).

Thus, the City of Vienna was to be upheld by the Administrative Court.

VwGH Ro 2020/05/0029-4 (24.5.2022)