Converting serviced apartments into housing units: what are the town planning implications?

Serviced apartments usually consist of attractive real-estate spaces that may make you want to convert them into housing units, given the current crisis in the hotel sector. However, can serviced apartments be considered to constitute housing units and therefore be run or leased as such? Can the occupants establish their residence there? Maître Frédéric van den Bosch, associate lawyer with Novalis, who heads the real-estate and town planning department, gives us a few answers.

Housing and hotel: what is the difference in town planning terms ?

Before anything else, in order to be able to understand the regulations that apply to the running of serviced apartments, the terms should be defined. So as regards town planning and according to the glossary of the Plan Régional d’Affectation du Sol (PRAS - Regional Land Use Plan), the concepts of housing unit and hotel establishments are defined as follows:

  • A housing unit is “a set of premises having been designed as the home or the residence of one or more individuals, as long as no other allocated use has legally been established there, including rest homes and approved or subsidised places of accommodation, and excluding hotel establishments”.
  • A hotel establishment is defined as “an establishment offering accommodation to individuals, that is able to provide customer services, such as a hotel, inn, youth hostel, motel, boarding house, serviced apartments, serviced flats, etc.”.

According to Maître Frédéric van den Bosch and in the town-planning sense of the term, the distinction between these two concepts seems to oppose the idea that serviced apartments may be considered ‘housing units’. More fundamentally, this distinction is essentially based on the following considerations:

  • The administrative authorities can agree to issue a permit for a serviced apartments project comprising units with small surface areas. To the extent that these are intended for temporary occupation, for individuals with another residence.
  • Conversely, with a housing project, the administrative authorities usually oppose programmes comprising small units.

Change of intended purpose subject to a permit ?   

Article  98, §1, 5, a) of the CoBAT (Brussels Spatial Planning Code) states that a town planning permit must be obtained prior to “modifying, even without any works, for all or part of a built or non-built property: (…) its intended purpose, that is the purpose for which the property is to be used according to the related building or town planning permit”. Now, Maître Frédéric van den Bosch stresses that if the permit relating to the property in question states that it is a hotel establishment (such as serviced apartments), the fact of converting this property into housing units constitutes a change in intended purpose as referred to by the aforementioned provision and is therefore subject to a permit. It should also be noted that this change of intended purpose is not exempt from the permit pursuant to the so-called ‘dispensation’ decree of 13 November 2008.

Is it impossible to establish residence in a serviced apartment ?

Nevertheless, despite these regulations, in the opinion of Maître Frédéric van den Bosch it is possible to establish residence. As regards the possibility of establishing residence in a serviced apartment, in principle the municipal authorities could not object to this. In fact, everyone is free to establish their residence wherever they wish. But that only concerns the question of establishing residence in the strict sense of the term. If a commune notes that several individuals have established residence at the address of a building comprising serviced apartments, it may consider that, in terms of town planning, the intended purpose of the premises has been changed without a permit and have an official statement of infringement drawn up or even ban occupation of the premises.

An opinion shared by Maître Gilles Carnoy, a lawyer specialising in real estate, who mentions in a memorandum that serviced apartments are not designed to serve as the occupants’ main residence. In principle, the law of 20 February 1991 is not intended to govern relations between the establishment and its clients. In fact, this law concerns the housing unit which the lessee, with the express or tacit consent of the lessor, designates as their main residence immediately upon taking possession. That is incompatible with the idea of provisional accommodation specific to serviced apartments.

Is the system applicable to serviced apartments discriminatory ?

In the view of Maître Frédéric van den Bosch, there would appear to be inequality between serviced apartments and serviced residences. As far as the principles are concerned, it seems to me that the applicable system constitutes a form of discrimination because, unlike serviced apartments, serviced residences intended for senior citizens may be considered to be housing units. Whereas, in terms of the configuration of the premises (or even the services offered to the occupants, as the case may be), the properties are similar. If authorisation to convert serviced apartments into housing units is refused, there may be grounds for submitting a question for a preliminary ruling to the Constitutional Court regarding an infringement of the principle of equality enshrined in Article 11 of the Constitution (unjustified difference in treatment between two identical or similar situations).

BuyerSide assists you with your conversion real-estate projects

As you can see, when it comes to converting serviced apartments into housing units, one situation is not like another. In practice, the situation would need to be analysed on a case by case basis to determine whether conversion into housing units subject to obtaining a permit is practicable. Account also needs to be taken, among other things, of the surface area of the units concerned and whether these units comply with the requirements of the Règlement Régional d’Urbanisme (RRU - Regional Town Planning Regulations) on housing. This is why at BuyerSide, we offer you personalised assistance adapted to the target dossier. Thanks to our team of experts, every detail is taken into account to enable you to carry out your real-estate projects.

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