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In 2019, Haarlem introduced a permit requirement for structural division (housing formation) and room-by-room rental. In 2022, rules on buy-out protection were added and the entire Housing Regulation was revised. Article 4 of the 2014 Housing Act stipulates that a housing regulation can set rules for a maximum of four years for the use or letting of residential space and changes to the existing housing stock, with the aim of bringing a new housing regulation into force for the Haarlem area on 1 January 2026. Six years after the introduction of the permit requirement for room-by-room letting and housing formation, it is time to take stock and share initial experiences.
A common problem is that it is currently no longer possible to obtain a division permit, even though dividing living space could offer a solution in these times of housing shortage. The only relaxation that the municipality of Haarlem has implemented in recent years is for living above shops, but otherwise splitting has been made virtually impossible by a splitting ban for a large part of the city and conditions for a minimum surface area of 80 m² for housing formation for the parts where permits can still be obtained.
An additional problem in Haarlem is that homes that were split before 2019 without a building permit must be returned to their unsplit state due to regulations that have been in force since 2019. The Administrative Law Division of the Council of State (ABRvS) ruled in its judgment of 27 July 2022 (ECLI:NL:RVS:2143) that if the home has already been structurally split before the introduction of the housing formation permit requirement in the relevant housing regulation, no housing formation permit is required. Under the Housing Act and Regulations, the building permit would then be irrelevant, because the only thing that matters is whether a permit was required under the Housing Act at the time of the division. However, the Municipal Executive of Haarlem does not take this ruling by the Division into account and considers split dwellings for which no building permit (i.e. no permit under the Housing Act) was issued in the past to be illegal, and therefore does not wish to apply transitional law or a hardship clause under the Housing Regulation.
However, in practice there appear to be many cases in which no building permit was applied for in the past for a structural division. Case law (see ABRvS, 11 June 2003, case no. 200301583/1 and ABRvS, 9 November 2005, ECLI:NL:RVS:2005:AU5864), it can be read that it was only from 2003 onwards that there were procedures concerning structural division and that until then, architects, structural engineers and civil servants considered it to be an internal renovation of a non-radical nature as referred to in Article 43, first paragraph, under e, of the Housing Act. The consequence for houses that have been split in the past without a building permit is that living space that has been part of the housing stock for years must suddenly be returned to its unsplit state. The regulations in the Haarlem Housing Regulation therefore have the opposite effect to that intended by the Housing Act: preservation of the housing stock. This policy is actually reducing the housing stock.
Initial reports from policymakers indicate that they do not intend to make any substantial changes to address the above issues. It is therefore up to the municipal councillors themselves to determine how to deal with splitting in relation to the housing shortage over the next four years. Corten De Geer Advocaten is closely monitoring these changes and will keep you informed.
