Condominium Ownership (PPP) and Airbnb: Can Short-Term Letting Be Prohibited?

Short-term letting platforms such as Airbnb have created genuine tension within many condominium ownership arrangements (Stockwerkeigentum, PPP) in Switzerland. The unit owner wishes to exploit the economic potential of tourist letting; the neighbours endure the constant comings and goings of unknown guests, the noise and the wear on communal areas. Can Airbnb be prohibited in a condominium ownership? The answer depends on several legal and factual considerations.

The co-owner's right to use their unit

Every condominium co-owner has the right to administer, use and internally modify their unit (art. 712a CC). This includes, in principle, the power to let the apartment, including on a short-term basis through Airbnb or similar platforms.

The right of use is not, however, unlimited. Art. 712a para. 2 CC provides that the exercise of the exclusive right must not prevent other co-owners from using and administering their own units or the common parts. Tourist letting is permissible so long as it does not impair cohabitation within the building.

The role of the condominium regulations

The condominium regulations are the central instrument for governing the use of units in a condominium ownership. Under art. 712g CC, the community of co-owners may establish rules on the use and administration of both the common parts and the individual units.

Regulations providing for residential use

Many sets of regulations contain a clause on the intended use: "the units are intended for residential use" or "for use as a primary residence". Where the regulations stipulate that the property is to serve as a primary residence, systematic tourist letting with a rotation of different guests may constitute a breach of the designated purpose. The Federal Supreme Court's case law tends to hold that hotel-like activity does not amount to residential use in the strict sense.

Regulations without a specific clause

Where the regulations say nothing about short-term letting, the position is more open. The absence of an express prohibition does not, however, mean that Airbnb is permitted without restriction. The co-owner remains bound by the duty to respect the rights of the other co-owners (art. 712a para. 2 CC) and by the rules of good faith (art. 2 CC).

Can the assembly prohibit Airbnb?

The assembly of co-owners may resolve to introduce a prohibition on short-term letting into the condominium regulations. An amendment to the regulations ordinarily requires the qualified majority prescribed by art. 712m para. 1 CC, namely a majority of all co-owners who simultaneously represent more than half of the value quotas.

The validity of such a prohibition depends on three principal factors, as confirmed by legal scholarship and judicial practice:

• Intended use of the property: Where the condominium ownership principally serves as a primary residence, a prohibition on tourist letting is more readily justifiable. In a family-oriented residential complex, the interest in tranquillity and community stability prevails.
• Location of the condominium ownership: In a tourist area (Engadin, Lake Lugano, Zermatt), where seasonal letting is established practice, an absolute prohibition is more difficult to sustain. The reasonable expectation of co-owners in such areas encompasses the possibility of temporary lets.
• Quality and standard of the property: The higher the standard of the property, the greater the community's legitimate interest in controlling access. In a luxury complex with exclusive amenities, a prohibition on Airbnb finds stronger justification.

Practical considerations and risks

Disputes typically arise when a co-owner commences letting without informing the assembly. The neighbours find themselves dealing with noisy guests, refuse in communal areas and intensive use of lifts and car parks. The assembly may intervene by passing a resolution restricting or prohibiting the activity, and if the co-owner fails to comply, the community may bring proceedings before the courts.

It should further be noted that a number of municipalities in Ticino have introduced specific regulations for short-term tourist letting, including registration obligations and tourist taxes. Anyone letting through Airbnb must also verify the relevant administrative and fiscal requirements at both municipal and cantonal level.

Legal advice for condominium co-owners

The Airbnb question in a condominium ownership touches upon property law, the condominium regulations and municipal rules. Each case presents its own particularities: the same activity may be lawful in one context and unlawful in another. Hugo Haab, Attorney-at-Law, and Roberto Haab, Attorney-at-Law, of Studio Legale e Notarile Haab in Lugano advise both co-owners wishing to protect their rights and those seeking to verify the lawfulness of their tourist letting. Contact us for a concrete assessment of your situation.

For a personal consultation: info@haablegal.ch | +41 91 913 30 70