The letting of accommodation for tourist purposes has also been on the rise in Vienna for years. This trend results from the advantages for both travellers and landlords: On the one hand, tourists usually have access to cheaper accommodation, and on the other hand, landlords have additional income opportunities. The downside of short-term tourist lettings, however, is that living space is partially or permanently withdrawn from the housing market for the Viennese population.

With the comprehensive amendment to the Building Code for Vienna ("BO for Vienna") passed on 23 November 2023, regulations were included in the law that regulate the use of living space for short-term rentals more strictly and finally put a stop to the short-term rental of living space via Airbnb & Co.

Background to the innovations

A first step towards curbing the phenomenon of short-term letting has already been taken with the 2018 amendment to the Building Code. As part of this amendment, it was clarified that commercial short-term letting of utilisation units designated as "flats" under building law is not permitted.

However, in the opinion of the legislator, the existing legal situation was not sufficient. In its view, there is also a public interest outside of residential areas in ensuring that living space is not permanently and unrestrictedly taken away from its actual purpose of satisfying a year-round housing need. The legislator has therefore standardised a further restriction, according to which the misappropriation of living space beyond the legally defined residential purpose is only permitted under certain conditions and with a corresponding exemption permit. 

Legal changes since 1 July 2024

With the amended version and introduction of Section 119 (2a) BO for Vienna, a standard has now been introduced into the law that defines which uses - apart from residential use - should be permitted in flats: 
In accordance with the previous legal situation, § 119 para. 2a lit a BO for Vienna once again explicitly clarifies that commercial use for short-term accommodation purposes is not an activity that is usually carried out in flats and is therefore not permitted as such in such flats. On the other hand, para 2a lit b restricts non-commercial short-term letting to "a temporary short-term letting of the flat not exceeding 90 days per calendar year, for which there is an obligation to pay a local tax in accordance with the Vienna Tourism Pro-motion Act as amended, without permanently giving up residence in this flat".

Are Airbnb & Co now history?

First of all: No. Airbnb & Co can continue to be operated, but an exemption licence must be obtained. In principle, commercial landlords are obliged to apply for an exemption licence if they wish to rent out their flats. 
What is new is that from 1 July 2024, an application for an exemption permit will be re-quired if private individuals wish to offer short-term rentals of more than 90 days per cal-endar year.
A closer look at the provisions of administrative criminal law shows that the "90-day rule" is less generous than it might appear at first glance. According to § 135 para. 6a BO for Vi-enna, not only the actual letting of flats, but also the offering of a flat for more than 90 days on a platform requires an exceptional licence. Letting and offering a flat for more than 90 days without an exceptional licence can be punished with a fine of up to EUR 50,000. 

What requirements must be met for an exemption licence to be granted?

The granting of an exemption licence (limited to a maximum of five years) is subject to certain conditions, which differ depending on whether the dwelling is located inside or outside a residential zone.
An exception for a dwelling within a residential zone can only be granted within the meaning of Section 7a (5) leg cit if it is ensured that the remaining usable living space in the building is at least 80 % of the sum of all usable areas, whereby the ground floor and basement floors are not taken into account.

An exceptional authorisation outside a residential zone can only be applied for if the dwelling is not located in a zoning category "grassland - recreation area - allotment garden area", "grassland - recreation area - allotment garden area for year-round living" or on land temporarily used for allotment gardening. Furthermore, no housing subsidies may have been utilised for the construction of the dwelling. From 1 July 2024, it will also no longer be permitted to rent out more than half of the flats in a house and the majority of the flats in the house must still be used for residential purposes.
Even if only the applicants are parties within the meaning of Section 134 BO for Vienna in the procedure for granting an exceptional authorisation, it should be noted that the owners and all co-owners - even without express party status - have a say. This is reflected in particular in the fact that the written consent of the co-owners must be attached to the application for an exemption permit. This is a mandatory requirement for the granting of an exemption licence.  

Conclusion 

The new regulations on short-term lettings massively restrict this - with the aim of relieving the housing market. It remains to be seen whether the improvement in the housing situation (and thus, for example, a desirable more stable rental price trend) envisaged by the legislator will materialise. What is certain, however, is that both landlords and tourists will have to adapt to the new conditions. It will also be interesting to see whether other cities will adopt the "Viennese approach" as a model.
According to the intention of the legislator - at least according to the legislative materials - the short-term letting of residential space should not be generally prohibited. According to initial reports, there have hardly been any applications for an exemption licence to date. It remains to be seen whether this is due to the transitional phase or simply the fact that the requirements for an exceptional licence represent a high hurdle for many (non-commercial) landlords.