In accordance with Section 88 (1) of the Lower Saxony Municipal Constitution Act (NKomVG), the chief administrative officer is obliged to inform the municipal supervisory authority immediately if a council resolution is deemed to be unlawful. Mayor Frank Ulrichs fulfilled this obligation in January 2025.
Following the council's decision on December 3, 2024 to revise the misappropriation bylaws, he raised considerable legal and substantive concerns in close consultation with the building authorities. In particular, the provision in Section 1 (3) sentence 2 no. 2, according to which unauthorized vacation apartments should be granted blanket protection - a measure that excludes precisely those properties from the statute that contribute particularly to the displacement of living space - met with criticism. Ulrichs subsequently informed the local authority of the district of Aurich - as required by law - and explained the facts of the case in detail in order to clarify the legal situation.
The detailed legal opinion subsequently issued by the district confirms this assessment in full. In it, the municipal supervisory authority states unequivocally that key provisions of the bylaws adopted by the council exceed the legal framework, contradict the legislative purpose and ultimately even counteract the intended protection of housing. The supervisory authority's assessment makes it clear that key elements of the bylaws are not compatible with applicable law, which clearly supports the concerns expressed by the city administration at an early stage.
Breach of law through attempted definition
In the opinion of the municipal supervisory authority, the statute lacks a viable legal basis. The self-defined exception for certain vacation homes was not provided for by the legislator. The city had exceeded its statutory authority by defining the term on its own authority.
The district refers to relevant rulings, including those of the Lüneburg Higher Administrative Court and the Schleswig Administrative Court, which make a clear distinction between permanent residences and vacation use. This differentiation is legally binding - and a blanket equalization of both types of use by a municipal statute is therefore not permitted.
Statutes undermine housing protection
In the view of the municipal supervisory authority, it is particularly serious that the statute inadmissibly restricts the concept of living space and thereby reduces the scope of application of the statute, which ultimately leads to a further shortage of living space. It thus contradicts the fundamental aim of a misappropriation statute, namely to preserve living space, prevent speculative vacancies and counteract conversion to vacation apartments.
False claims about approval practice
The local authority also rejects the assertion contained in the statutes that the district has generally equated permanent and vacation homes in the past. Such an approval practice had demonstrably never existed. The attempt to derive protection of the status quo from an allegedly long-standing administrative practice is unfounded and inadmissible.
Grandfathering only with approval - no blanket regulations
Vacation homes are only protected if they have been approved under building law - a blanket regulation, as provided for in the statutes, is not permitted. The competent building supervisory authority, not the city, is responsible for examining individual cases. The impression created in the statutes that vacation apartments are automatically legal could create a misleading legal appearance - with potentially serious consequences.
Repeal of the council decision urgently recommended
In view of the numerous legal deficiencies, the municipal supervisory authority expressly recommends that the resolution on the articles of association be revoked in the interests of legal certainty. Should the city nevertheless adhere to the adopted version, a complaint by the supervisory authority would be unavoidable.
A fatal signal
"Anyone who protects illegally constructed or unauthorized vacation apartments with a bylaw after the fact risks undermining trust in the municipal rule of law," commented Mayor Frank Ulrichs. "The city administration pointed out the impending risks at an early stage. It is now up to the council to take responsibility and correct the statutes before irreparable damage is done - not least for all citizens who are looking for affordable housing now and in the long term. This is expressly not about playing off vacation apartments against permanent apartments across the board or ignoring justified individual cases and undue hardship. A fair and comprehensible approach with a sense of proportion has always been assured - at the core, however, the aim must be to permanently secure approved permanent living space and effectively counteract its misappropriation."