Access to second homes in Germany during the corona lock-down

The measures taken in Germany to combat the coronavirus were not, from the outset, aimed at a general ban on access to second homes. At the beginning of the pandemic, there were different rules for second homes depending on the Land. There were recommendations, and in some regions citizens who did not have their main residence in the Land of their second home were initially prohibited from crossing the Land border and visiting their second home.

This changed rapidly after the administrative courts in some Länder lifted or suspended the ban on the use of second homes. The courts found the ban on travelling to the second residence to be disproportionate and thus illegal. The governments of the Länder concerned responded by amending their regulations without delay.

Here are just a few examples:

  • Berlin/Brandenburg: following a decision of the Higher Administrative Court of Berlin-Brandenburg in March, a spokesman for the Brandenburg Ministry of the Interior clearly stated: “Anyone who owns a holiday home or apartment in Brandenburg may, of course, use it themselves”.
  • Mecklenburg-Western Pomerania, a very touristy Land on the German Baltic Sea coast: after a ruling of the High Court of Greifswald on 9 April 2020, which lifted the travel ban for the local population, the state government decided on 17 April 2020 that anyone living in Mecklenburg-Western Pomerania may visit any place there, including a second home on the coast and on the Baltic Sea islands.
  • Some Länder in Germany, such as Bavaria, also a Land with very attractive and popular tourist regions, as well as Saxony-Anhalt and North Rhine-Westphalia, have at no time forbidden the private use of second homes.

Conclusion: In Germany, during the corona crisis, second-home owners were not ultimately prevented from using their property, even if it was in another Land.

Lock-down and second stays in France: a different approach from the very strict ban in Belgium

In the afternoon of Tuesday 17 March, France, like most other countries in Europe around the same period, went into lock-down. Only a few movements were allowed and only on the basis of a certificate. In the absence of proof, our French neighbours risked a fine of 135 euros. Contrary to what we saw in Belgium, spending the lock-down in a second stay was not forbidden. People who were in their second residence on 17 March at noon were allowed to stay there.

However, it was absolutely forbidden to shuttle back and forth between the second residence and the main residence. As in Belgium, the presence of the owners in their second residence caused some commotion among part of the local population. In an interview with Paris-Match anthropologist Jean-Didier Urbain gave some interesting comments on what happened in France.

Click here to read the interview (in French).

Absurd corona rules: From 21 May onwards, people were allowed to return to their second residence in Belgium, but not on the other side of the country border.

When on 21 May 2002, under pressure of a threatening legal procedure, it was hastily decided in Belgium that people could return to their second residence, this was a relief for many. After all, no one understood why shopping was allowed on the Meir in Antwerp or on the rue Neuve in Brussels as early as 11 May, while the ban on second-residents remained in place (originally it was even decided to maintain the ban “at least” until 8 June!).

At that time, campsites and holiday parks in the Netherlands were already open for some time. Dutch and Germans could go to their holiday home or mobile home in the Netherlands unhindered. However, Belgians were stopped at the border by the Belgian police. That rightly provoked furious reactions:

  • “I have a new caravan on a rental plot on a camping site in the Netherlands.
    The campsite is open under strict conditions such as having your own toilet… keep your distance. Germans and Dutch are present but as a European (Belgian) I am not allowed to go there because I am not allowed to cross the Belgian border. Hopefully our caravan is still there and hasn’t been robbed. You are allowed to go to an amusement park or cycle with 20 people but not to cross the border. Finally we are allowed to visit the second residence now, but unfortunately only within Belgium”.
  • “Where can I be safer for corona contamination than in my second stay just across the border in Belgium.”
  • “I bought a mobile home in Holland. Since the end of February everything is finally connected but we are not allowed to go there”.
  • “The Belgian government won’t let us return to our mobile home in Zeeland. We have a written approval from the caravan park and we were already allowed to go back from May 1st 2020. We are just not allowed by Belgian politics. The same compatriots with 2nd residence are allowed back in Belgium, but not 10 km across the border in Zeeland. Please help us!”

Ownership restriction of second-residents: proportional in times of Covid-19?

At the end of April, an interesting article was published in “De Juristenkrant” (a Flemish gazette addressed to legal professionals) by a group of legal researchers from KU Leuven. According to the authors, actively tracing and returning second-residents who already reside on the coast does not pass the test of legality and proportionality.

According to Article 7 of the Ministerial Decree of 18 March 2020, non-essential travel in Belgium was prohibited. Furthermore, Article 8(1) stipulated that persons had to stay at home and it was forbidden to be on public roads and in public places, except in case of necessity and for urgent reasons. In the absence of any transfer or movement, the authorities could not invoke Article 7 to track down second-inhabitants and expel them from their property. Moreover, by returning to the first place of residence, a person who has been sent back finds himself on the public highway without any necessary and urgent reasons and provokes a non-essential displacement. This is therefore in breach of Articles 7 and 8.

A second uncertainty concerns the interpretation of Article 8, which stipulated that persons had to stay at home. However, the term ‘home’ was not defined. In the absence of a definition in the Ministerial Decree, a second residence can also qualify as a ‘home’, at least in the broad sense of the word. The researchers also note that prior to the proclamation of the prohibition, citizens should have been given the choice of where they would prefer to stay, just as students were given the opportunity to do so. In any case, according to the lawyers, the rigorous way in which the measure was enforced could be questioned. In some municipalities, for example, large-scale police checks were set in motion, ‘home visits’ were carried out and drones with thermal cameras were deployed. According to the authors, the proportionality of this measure – which postulates second residents as if it were hunted game – is hard to find on all fronts.

Click here for the full text in Dutch.

Read on the RTL Info website (19 May 2020): A caravan on the coast is the only leisure activity for Frédéric and his family, but they can’t enjoy it: “an injustice!

Read on the RTL Info website (19 May 2020): A caravan on the coast is the only leisure activity for Frédéric and his family, but they can’t enjoy it: “an injustice!

Frédéric, his wife and their two sons, 17 and 13 years old, live in an apartment building in Charleroi. Since mid-March, the family has been saying that they respect the lockdown as carefully as possible: our witness and her son are asthmatic and want to protect themselves against the coronavirus at all costs. But with no balcony, no garden, no car, no place to walk in their neighbourhood… the lock-down is long, very long. But what hurts Frédéric the most is that they use all their savings to pay for their caravan on the coast. So every day, our witness imagines how he, his wife and their children could have spent the lockdown in their second home: small garden, walks, bike rides, fresh sea air …

Click here to read the full article – in French.

Opinion of Advocate Van Steenbrugge: “Corona must not prejudice the rule of law”

The corona crisis prompted the government to take far-reaching and urgent measures in the context of our safety, health and well-being. No problem, is our first impression, given that these measures will hopefully help to fight and overcome the corona virus. However, some of these measures restrict our fundamental freedoms and even violate them in a blatant and inadmissible way. The sense of justice of the critical thinker begins to gnaw and rebel. Are we going to blindly observe and undergo all these measures, or do we still dare to question their proportionality and the motives behind them?

To read the full text in Dutch, click here

Read on the website of GDENA lawyers (11 May 2020): COVID measures and property rights on (too) tense. Do (some) coastal mayors have a point?

The last few days there has been a lot of commotion about the non-admission of second residents on the coast (and in the Ardennes). The local hospitality industry and traders are shouting murder and fire. It is said that it makes little sense to open shops when their main customers are not allowed to come. Holiday homes on the coast generate €1.5 billion in turnover, 1.1 billion of which is generated by second-income households. They account for 13.6 million of the 30 million overnight stays on the coast.

To read the full text in Dutch: click here.

Linda has an apartment by the sea, but still has to drive 400 kilometers every day for her work: “Governor advised to stay in a hotel.”

On 7 May 2020 the following story appeared in a number of Flemish newspapers.

Nobody wants to go back to her second stay on the coast as soon as Linda from Maasmechelen. She now drives 400 kilometres to and from her work in Diksmuide every day.

Linda has been working in the Absolute Jobs temporary employment agency in Diksmuide since the beginning of this year. She rents an apartment in Koksijde but her residence is still with her parents in Maasmechelen. When the Security Council decided that the companies could reopen, Linda was also told by her boss that she is expected at the office.

“I didn’t think that was a problem,” Linda said. Or at least: second-in-command is not welcome at the coast since the lockdown.

“I already e-mailed the governor of West Flanders: can’t an exception be made for people like me who rent on the coast because they work there? But the answer unfortunately was that I’m not allowed to sleep in my apartment. So I have to drive more than 400 kilometres every day. That will be fun rides. Good for the environment too,” sighs Linda cynically.

The governor advises Linda to stay in a hotel. After all, they are allowed to stay open for guests who make an essential journey. But Linda finds that absurd. “Then I’ll be in contact with other people in the same building, won’t I? I have a perfect little apartment, just for myself, for which I already pay 600 euros a month. And then I’d have to pay for a hotel room?”

Click here for the full article (only for subscribers of Het Nieuwsblad)