Law: Judgement in Potsdam makes recreational boat a structural facility - My Boat is my Castle

A houseboat is a recreational craft if it is authorised in accordance with the German recreational craft regulations. Just as a mobile home on the road is a car and not a house. For mobile houseboats that can move under their own power and are no longer than 24 metres, this also applies in Germany, but only on the water. At least that was the case until now.

A decision by the administrative court in Potsdam at the beginning of March has caused a stir in the Brandenburg water sports industry. In it, houseboats are no longer treated as recreational craft, but as field kitchens. Like these, houseboats are also intended to be used "predominantly stationary" according to their purpose.

It was sufficient for field kitchens to be set up for five consecutive days for three hours each for sales purposes, the judge said in his reasoning. Just like houseboats. The latter were firstly connected to the ground via a jetty, secondly made of construction products and thirdly intended to be used predominantly in a fixed location.

Ergo, the Potsdam judge concluded, all houseboats would be subject to the Brandenburg Building Code. To be more precise, paragraph 2, section 1, sentence 1, which regulates what constitutes a so-called building structure. Under certain circumstances, field kitchens can also fall under this paragraph. Even a pile of wood can be such a structure. But a houseboat?

If one were to follow the legal opinion of the Potsdam judge, virtually overnight all recreational craft in Brandenburg would no longer be recreational craft, but structures. Seen in this light, that would not be so far-fetched. Because, hand on heart, how often are most of the leisure boats moored at Brandenburg's jetties actually used? - That's right: very rarely. At the weekend, perhaps when the weather is nice. At a regatta. Or on a holiday trip with the family. Otherwise, most boats are often moored at the jetty - in other words, they are used "predominantly stationary".

However, if one were to follow the Potsdam judge's reasoning, this would mean that all of these recreational boats would suddenly be "formally illegal". After all, none of them have a proper building licence in accordance with Brandenburg building law. According to this logic, all of the pleasure craft - regardless of whether they are sailing boats or motorboats - would probably not even be eligible for authorisation. Ergo: they would have to go. And immediately. In legal terms, this is called an obligation to "remove".

It is obvious that this argument is flawed. After all, a boat (including an authorised mobile houseboat with a licence plate) is not a structure, but a floating installation. The distinction may seem like crumbs to many. In this case, however, it is essential.

Further trouble is already looming for houseboat owners - with almost identical reasons: on 21 March, the Lower Building Supervisory Authority of the district of Northwest Mecklenburg in Grevesmühlen threatened a houseboat owner with a penalty payment of one thousand euros, ordering immediate enforcement, if she did not immediately cease operating her houseboat in the Bad Kleinen marina on the northern part of Lake Schwerin after receiving the letter.

The representative of the authorities in Grevesmühlen also argued that the sports boat on Lake Schwerin was a "structural facility" according to the Mecklenburg-Vorpommern state building regulations - and was therefore "in conflict with public law regulations". The boat was "predominantly stationary" in the marina; it did not matter whether the "structural facility" was on land or on water.

The decisive factor is "that there is a recognisably established relationship between the installation" (the boat) "and the area on which it is parked or set up". It is irrelevant whether, from an "evaluative point of view", the use takes place at the same location or for "traffic or transport purposes between different locations".

It depends on "whether a floating house, by its nature, the type and location of its installation and the facilities created for its use, would give an unbiased observer the impression" that he would not encounter this house (boat) in this place "just by chance" - at least according to the official from Northwest Mecklenburg.

However, this is precisely the "wrong idea", because: with the classification as a "floating facility", water law applies and not building law when it comes to the free mooring of boats on jetties, says the well-known Berlin lawyer Rolf Bähr. On the one hand, water law gives rise to the right to navigate waterways, says Bähr. On the other hand, this also includes lying on the jetty. Bähr: "Mooring at the jetty is stationary traffic, not stationary use". This applies to all pleasure craft, including houseboats. But not for field kitchens.

In Berlin, some judges took a similar view to the once very successful sailor Bähr, who had already successfully fought the famous Wannsee trials. Back in June 2016, for example, the Berlin Administrative Court differentiated between residential boats (which are not the subject of this case) and mobile houseboats.

The Berlin judges said that mobile houseboats that could travel on waterways with their own motor for leisure purposes were recreational craft. And: these fell under the definition of recreational craft according to the corresponding EU directive.

Even the Federal Fiscal Court has already given thought to so-called "floating installations" in a judgement from October 2011. It was determined that such a facility is not a building in terms of valuation law due to the lack of a fixed connection to the land and lack of stability. And therefore not to be valued like a house. Or like a field kitchen.

So it's all just a storm in a teacup? Not at all. Houseboat charter is a "Brandenburg model for success", says Walter Kussmaul from River-boating.com, one of the big names on the scene. He estimates that there are "one million overnight stays per year" between the Spreewald and the Baltic Sea alone, and this figure is probably "even higher". Individual lawyers are now in the process of destroying this successful model, which was politically desired and subsidised with many millions of euros from the state, federal government and EU.

Rolf Bähr: "If the decision of the Potsdam Administrative Court were to go through in the main proceedings, soon no boat in Brandenburg could be labelled as a recreational craft, but as a floating facility". That may sound exaggerated, but it is not completely impossible as things stand.

What to do? - representatives of the houseboat industry asked themselves at a hastily convened workshop at the Berlin Exhibition Centre on 19 March. The motto of the meeting was "Only together are we strong". After the meeting, it was clear that this is precisely the industry's shortcoming.

This is because there is no separate trade association that looks after the interests of both houseboat manufacturers and charter companies - there is still no strong lobby organisation that would enhance the image of houseboats in the public eye, with technical specialists and legal experts, lobbyists, PR and marketing specialists at the helm.

So far, each of those affected has fought their own battle against the authorities and courts. In addition to the houseboat owner from Lake Ruppin (a competitive swimmer, ambitious sailor and motorboat driver who uses his houseboat, which is authorised and properly labelled as a sports boat, for training purposes with fellow athletes and makes it available for regatta safety on the lake) and many private houseboat owners, these include Walter Kussmaul, Ben Bolle with his "Wasser-Appartements", Marc-Oliver Lüdecke from the "Alte Liebe" on the Havelchaussee and Frank Cotte with his Spree-Arche, who were present at the workshop in Berlin.

They all agree that the industry's problems can only be tackled effectively if all those affected join forces. This includes, first and foremost, having a binding definition at federal level of what exactly constitutes a recreational craft - and what does not - and bringing about a statutory federal regulation according to which mobile houseboats are recreational craft - and not field kitchens - even if this should actually be clear to everyone under current law.

This article is from the current June issue of BOOTE, which will be available in stores from 16 May. For Subscribers Of course, sooner.