21.03.2019
What criteria are important in answering the question of whether this is still a normal room rental or whether it is already commercial accommodation of guests within the meaning of Section 111 Paragraph 1 Item 1 of the Trade Regulation Act? This mainly concerns landlords who make their apartment(s) available via an agency platform (e.g. Airbnb), perhaps only for a few nights. If commercial accommodation is provided, a business license is required in order to be able to run the business legally.
The LVwG Tirol made a decision in this regard (LVwG-2018/15/1757-4), which was also confirmed by the VwGH (VwGH 27.2.2019, 2018/04/0144). Accordingly, in addition to obvious criteria, such as the subject matter of the contract, the duration of the contract, agreements on termination and notice periods, ancillary agreements on the provision of bed linen and on services such as cleaning the rooms, bed linen or the tenant's clothes, consideration must also be given to the way in which the company presents itself to the outside world. It is necessary that the appearance (resulting from the interaction of all circumstances) reveals behavior on the part of the landlord that - even if in a limited form - reveals ongoing care with regard to the rented rooms in the sense of the resulting care of the guest (see also VwGH 12.7.2012, 2011/06/0059 to 0060; 23.6.2010, 2008/06/0200; 15.9.1992, 91/04/0041, each with further references). In order to assess whether a commercial enterprise is present, it is therefore not only important that unusual additional services are included in the remuneration, but also how the apartment is presented to the outside world (VwGH 20.10.1992, 91/04/0216).
The offering of apartments on brokerage platforms is therefore subject to the provisions of the Trade Code if a “pure rental“ there can no longer be any talk of living space. Due to the high administrative costs caused by the constant change of guests, the offering of the apartment via the Internet to an indeterminate group of people, the rental not only of an apartment but also of the associated furnishings and the charging of a flat rate (instead of a breakdown into rental, operating and energy costs), the hospitality industry is carried out within the meaning of Section 111 Paragraph 1 Item 1 of the Trade Regulation Act (LVwG-2018/15/1757-4).
Landlords who attract customers via a brokerage platform are obliged, at the latest based on the decision of the VwGH, to obtain a trade license in accordance with Section 94 Z 26 GewO if, on an overall assessment, it emerges that commercial accommodation of guests within the meaning of Section 111 Para. 1 Z 1 GewO is present. Commercial accommodation of guests is present in short-term rentals above all if the landlord offers additional services that would be unusual in a normal residential rental and the apartment is offered "touristily" via a brokerage platform.