Storage as living space: is that allowed under the VvE rules?

Suppose you have a home in an apartment building and a storage room in the attic floor. Can you then use that storage room as an extra bedroom or a study? Of course that would be beneficial: you create extra living space, the value of your apartment increases because the living area is increased, and so on. However, the neighbors may not want this. After all, the storerooms and stairs will be used more intensively, perhaps more people will live in the building because there are more (sleeping) rooms, and noise pollution may occur. Therefore, there have been regular lawsuits about whether a storage room can be used as additional living space under the rules of the HOA.

Storage should not be used as a bedroom or study

It follows from case law that this is often contrary to the rules of the VvE. Of course, it depends on how the storage space is described in the subdivision deed and drawing, but if that space is designated as ‘storage’, then it must be used that way. In other words, as storage space. The District Court of Amsterdam ruled on March 16, 2022 (ECLI:NL:RBAMS:2022:1662) that a storeroom is, in fact, a ‘storage room’ and not an accommodation for persons. In the case in question, the destination of the apartment was ‘dwelling’, but it was added that there was a ‘storage room’ on the attic floor. According to the court, this shows that the intention was to give that space a further destination.

‘Storage’ zoning is a restriction on permitted use

A short time later, the court issued another ruling in that case. In it, the court said that by zoning ‘storage,’ it was also intended to restrict the manner of use of that space (ECLI:NL:RBAMS:2022:1735). In other words, by designating the space as ‘storage,’ it may no longer be used as living space.

Court confirms that storage room cannot be used as living space

The Amsterdam Court of Appeal confirmed this in two judgments. In a judgment from 2024 (ECLI:NL:GHAMS:2024:2761) the Court of Appeals ruled:

“5.6. In the description of the apartment right in the division deed, the space on the fourth floor belonging to apartment 110-A is designated as ‘storage’. Also on the subdivision drawing accompanying the subdivision deed, the space on the fourth floor belonging to apartment 110-A is designated as ‘storage room. [appellants] correctly argued that the common meaning of the word ’storage room‘ is ’a space to store something‘. Indeed, the Van Dale dictionary defines a ’storeroom‘ as ’space to store something‘, with the synonym ’storage space‘. An indication that something other than the common meaning of the word storeroom is meant here is missing from the subdivision deed.’

In a judgment a few years earlier (2019), the same Court of Appeals in another case (ECLI:NL:GHAMS:2019:2898) also reached that conclusion. In that ruling, by the way, the court did consider that if the storage room is used as a laundry room, this does not violate the zoning. Thus, an apartment owner may place a washing machine in the storage room.

For use of storage room as living space, permission of VvE is required

This shows that a storage room may not be used as living space. A storage room is a storeroom and therefore storage. If a member of the VvE wants to use that space as an extra bedroom, as a study or in any other way add it to his home, permission from the VvE is required.

Use of storage shed in violation of subdivision deed: what about prescription?

It could be that a salvage yard has been used in violation of its zoning for quite some time. The question then is whether prescription can occur. The answer is that this is indeed the case. But this does not happen just like that. First of all, a very long statute of limitations. In fact, it involves a unlawful situation. For that, the law provides that prescription only occurs after 20 years. Thus, if an owner has used his storage space in violation of the zoning for 20 years, only then can prescription occur. Such luck had a property owner from Rotterdam, who used his apartment with the destination ‘café’, for more than 20 years as a operated brothel. However, it is then required that the other owners were also aware of that use.

Statute of limitations starts to run only upon knowledge of unlawful situation

This is because the statute of limitations only starts to run when you can actually claim removal of the unlawful condition. And you can only do that when you become familiar with that state of affairs. That familiarity obviously existed in the Rotterdam case (everyone saw that the café was actually a brothel), but in a case in which an apartment owner had taken a communal crawl space into use, no statute of limitations occurred for precisely that reason. The other owners namely, could not see That it had been put into use.

May buyer continue the unlawful use of the salvage yard?

The next question is what exactly is then time-barred. Namely, that is the right to claim that an unlawful condition be removed. See article 3:314 BW. The right to claim cessation of the use contrary to the deed from the current owner is then time-barred. But if that owner sells his apartment, the buyer does not get the right to use that storage room as living space as well. This is because the statute of limitations does not change the purpose of the room. The old owner ceases to use the storage room as living space and thus stops the unlawful condition. It is then defensible to argue that the new owner, if he starts using the storage room as living space again, creates a new unlawful situation. The statute of limitations then starts to run again. Only after (again) 20 years can action no longer be taken against that use.

Lawyer VvE law in case of conflict with subdivision deed

With the above, by no means everything has been said. For example, under circumstances, there may be estoppel, consent may have been granted, and so on. If you have a similar issue in your CoE, it is therefore wise to timely contact take up with a specialized VvE lawyer, to know what rights obligations are.