What you need to know about the Rental Agreement for a Flatshare in Germany

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Every third student in Germany lives in a shared flat. But what is the maximum number of residents that a shared flat can have? Do you need the landlord’s consent if you sublet a room? And who is liable if something breaks? You should know these things before you sign the rental agreement.

Rental Agreement for a Flat Share: The advantages of living in a shared apartment cannot be denied: a flat share is usually cheaper than your own apartment, you are no longer attached to mom’s skirts and can live out more individually than in a dorm, where the waiting lists are long anyway. Ideally, you will then get along so well with your roommates that you will cook together, celebrate together and you will always have a shoulder to cry on – be it lovesickness, homesickness or exam stress.

Rental Agreement for a Flatshare

The rental agreement for a flatshare (WG)

From a purely legal point of view , a WG rental contract is a simple rental contract , as it is also concluded for conventional living conditions. However, it can appear in three variants :

  • One resident is the main tenant, the others are his subtenants. In this variant, there is a rental agreement between the landlord and the main tenant and a sub-lease agreement between the main tenant and each of his sub-tenants.
  • All flatshare residents are main tenants. In this variant, there is a single rental agreement between the landlord and all main tenants.
  • All flatshare residents are independent tenants. In this variant, the landlord concludes a separate rental agreement with each tenant.

The variant that occurs most frequently is that all roommates are listed as the main tenants in the rental agreement. This has the advantage that they are all equal. No one can give the other notice of termination – as it is e.g. B. would be the case with a sublease – and everyone receives all the important letters from the landlord.

The downside for renters (and upside for landlords) is joint and several liabilities. This means that all residents of the shared flat have to pay for any claims by the landlord, even if only one person is to blame. is e.g. For example, if one of the roommates is in arrears with the payment of his rent, the landlord can sue for the full amount owed by any tenant.

This article cannot replace legal advice. If in doubt, seek help from a lawyer or a tenants’ association.

The 3 fundamental factors to consider about a flatshare

1. How many residents can a flat share have?

In principle, a flat share may only have as many flat share members as there are bedrooms available. Violation may result in “dismissal for good cause.” So that means: If Sandra, Alina and you live in an apartment with three bedrooms and Alina’s boyfriend moves into her room, she risks being kicked out.

2. What is a commune?

A shared apartment is created when several independent, mostly unrelated people live together in one apartment in order to save costs. Rooms such as the bathroom, kitchen or living room are shared. The common purpose means that you conclude a social contract with your flatmates and the flat share becomes a civil law partnership (in short: GbR) according to § 705 BGB. No written document is required for this – verbal agreements (e.g. on the cleaning plan) or simply coherent action are enough to bring this about.

3. Is a couple a flat share?

Anyone who is married or in a registered civil partnership does not form a shared flat. In this case, the landlord’s consent is not required if your partner subsequently moves into the apartment. To avoid a dispute, you should of course inform the landlord anyway.

For unmarried couples, the question is a bit more complicated. According to the social law, they are not a flat-sharing community, but a community of needs – at least if they “show the will to take responsibility for one another and to stand up for one another”. It is considered an indication of this if a couple has lived together for more than a year, has a child together, or has a joint bank account. 

The distinction between a shared flat or a community of needs only plays a role if one of you wants to receive unemployment benefit II. It has no effect on tenancy law. In the case of a non-marital cohabitation, the landlord must therefore always agree before your partner is allowed to move in with you.

Rental Agreement for a Flatshare

The 4 main flatshare rental models in Germany

Tenancy law does not recognize the form of living together in a shared flat. Therefore, the law does not contain any rules according to which the rental agreement must be designed. Basically, however, the following models have emerged.

Model 1: All residents are the main tenants of the shared flat

In this model, all residents are named in the rental agreement and must sign it. This means that they all have the same rights and obligations towards the landlord. Accordingly, the landlord must always address utility bills, notices of termination or other letters to all residents of the shared flat. The major disadvantage of this model: every resident is fully liable for damage and financial liabilities.

In this constellation, everyone who lives in a shared flat bears a high risk – seen in this light, it is not the best option. However, many landlords insist on this type of contract because they can collect outstanding claims from each of the tenants.

Model 2: The WG as a GbR is the main tenant

Since the Federal Court of Justice ruled in 2001 that a GbR has (partial) legal capacity, a WG “as such” can also become a party to a rental agreement. The roommates do not sign the rental contract as individuals, but in the name of the flat share.

What is a (Gesellschaft bürgerlichen Rechts) GbR?

GbR is a civil law partnership in which at least two founders join forces to pursue a shared purpose, in this case to rent a flat together. It is one of many legal forms in Germany.

As with all partnerships, the civil law partnership (GbR) is not considered an independent legal entity. However, it may acquire certain rights and obligations.

A GbR can never acquire merchant characteristics. If a GbR starts a trade, it becomes an open commercial company (OHG).

Exception: Small traders are not considered merchants. Thus, the inclusion of a small business within the framework of a GbR is possible.

Model 3: One main tenant, several subtenants

One resident of the shared flat is the main tenant and the sole contractual partner of the apartment owner. All other residents sign a sublease agreement with the main tenant. The main tenant alone determines the rules of the game in the shared flat – he determines who moves in with him (the landlord’s consent is required!) and how high the rent for his roommates is. In return, he alone bears the economic risk: he pays the deposit, has to transfer the full rent to the landlord on time – even if a room is currently vacant – and is liable for cosmetic repairs.

This constellation is worthwhile for the main tenant if he only takes in subtenants to bridge financial bottlenecks and later wants to use the apartment alone. This variant is interesting for subtenants if they only want to live in the shared flat for a reasonable period of time anyway, for example for an internship .

Attention: If individual rooms in an apartment are sublet, the tenant protection rights only apply to a limited extent. The main tenant can terminate his sub-tenants without having to invoke a legitimate interest (e.g. personal use or breach of contractual obligations). In this case, however, the notice period is extended by three months and is therefore usually half a year or longer – if push comes to shove, you have enough time to look for a new roof over your head.

Model 4: The landlord makes an individual contract with each resident

This has the advantage that each of you can cancel at any time and does not have to consider your roommates. In addition, everyone is only liable for themselves. However, in this model, the landlord can determine who lives in the shared apartment – so you have to come to terms with the candidate he chooses.

Those who take a pragmatic view of flat-sharing and do not attach great importance to family cohesion will do best with this constellation.

Who is liable in the flat share?

The first hurdle has been cleared and the rental contract for the flat share has been signed. But the questions don’t stop there. What happens if your roommate doesn’t pay their rent or damages the apartment? Does the landlord have to agree if a new resident moves in? And why are you also liable, even though you no longer live in the shared flat?

Rental Agreement for a Flatshare

Liability for damage in the flat share

The shared party was great. Until your roommate fell into the aquarium. Now the wooden floor is in the bucket and has to be replaced at a lot of money. But who is actually responsible for this?

Model 1: All residents are jointly the main tenants of the shared flat

If all flatmates are the main tenants, they are in principle jointly liable. However, this does not apply to damage to the rented apartment. Put simply, one can say that here – unless otherwise stipulated in the rental agreement – ​​the flat share member who caused the damage is solely liable.

Model 2: The WG as a GbR is the main tenant

If the WG “as such” is the main tenant and a WG member causes damage to the rented apartment, then the WG is liable together with its company assets (e.g. from the community fund). However, since this is usually not enough, you and your roommates are also personally liable. You can only exclude this personal liability with the cooperation of the landlord.

Model 3: Main tenant and subtenant

If you are the main tenant and your roommates are subtenants, you are only liable to the landlord. In the event of damage to the apartment, you will be held responsible for the behavior of your roommates and you are responsible for having them compensate you for the damage.

Model 4: Each resident has their own rental agreement

In this case, each resident is solely responsible for the damage he has caused in his room or in the common areas.

Who is liable if a resident does not pay their rent?

Just because you share the bathroom and kitchen with your flatmates doesn’t mean you have to take care of their finances too? Wrong thought! Whether the landlord can ask you to pay depends again on the constellation of the flat share.

Model 1: All residents are the main tenants of the shared flat

In this case, the so-called joint and several liability applies. The landlord can sue any tenant for the full amount of the debt.

Model 2: The WG as GbR is the main tenant

The same applies here: The WG is liable with its assets for the default of a resident. If a resident cannot pay, the others have to step in.

Model 3: main tenant and subtenant

If the main tenant does not pay his rent, the landlord cannot contact the subtenant. However, if the main tenant is given notice because the rent is due, the subtenants are threatened with being evicted from the apartment, even though they themselves were not in breach of contract.

If the subtenant does not pay on time, the main tenant must still pay the full cost to the landlord. He therefore bears the financial risk of the loss and has to answer for his subtenants.

Model 4: Each resident has their own rental agreement

Each resident is responsible for their own rental costs. If someone else violates their duties, this has no consequences for you.

Roommate change: who has to agree?

When it is founded, a flat-sharing community is designed so that there will be a change of tenants. Does the landlord have to give his approval before every change of membership? Here, too, a distinction is made according to who is the main tenant. Whether you are liable in the event of damage even after you move out depends on whether the landlord has agreed to the change.

Model 1: All residents are jointly the main tenants of the shared apartment

If all residents of the shared apartment have signed the tenancy agreement, they can only terminate the tenancy together. If someone wants to leave early, all residents must jointly ask the landlord to release this person from the contract. The same applies if a new resident is to be admitted to the flat share.

Because this is very complicated, you can agree with the landlord that the contract does not have to be revised for each tenant rotation. For the landlord, however, this entails the risk that in the end he no longer knows who is currently living in the shared flat. He will therefore insist that he be informed of moving out or moving in in any case.

Model 2: The WG as GbR is the main tenant

A change of members within the WG has no effect on the relationship with the landlord. This means that not the landlord, but all flat share members have to agree to a new flat share member moving in. However, the landlord can reserve the right to consent to a change of tenant in the rental agreement. If he does not do this, he may be entitled to a right of termination for important reasons (e.g. because the new roommate cannot pay the rent). However, he may only refuse to agree to a new flat share member if there is a factual reason for doing so.

Model 3: Main tenants and subtenants

Living spaces may only be sublet with the consent of the landlord. If the landlord has given general permission, he has no influence on the change of occupants. More often, however, the landlord has only approved this one sublease. The main tenant can then end the sub-tenancy, but must obtain a new permit before accepting a sub-tenant again.

Model 4: Each resident has their own rental contract

If a member of the flat share wants to move out, they terminate their contract within the statutory period. The landlord takes care of the search for a new tenant. The residents who remain in the shared flat usually cannot choose who moves in with them.

Are you still liable even after you move out?

After moving out of the WG, you may be subject to (subsequent) liability – namely if you were one of the main tenants or the apartment was rented to the WG as a GbR.

Model 1: All residents are jointly the main tenants of the flatshare

If there are several main tenants and you move out without the landlord’s consent, this does not automatically release you from liability. After all, your name is on the rental agreement. Without the consent of the landlord, you are still liable for all liabilities that arose during your shared flat and that become due after you move out. If, on the other hand, you move out of the flat share with the landlord’s consent, you are only liable for those liabilities that arose during your flat share membership and become due before you move out.

Model 2: The flatshare as a GbR is the main tenant

If the WG “as such” is the main tenant, the liability of the moving-out member of the WG depends on whether the landlord has reserved the right to consent to the change of tenants in the tenancy agreement or not. If not, the leaving flat share member remains liable even after moving out. However, this is only up to the point at which the landlord becomes aware of the move out. If, on the other hand, the landlord has reserved the right to consent to the moving in of a new flat share member, there is no subsequent liability for the flat share member who is moving out.

Is the new flatmate liable for his predecessor?

When it comes to the liability of the flat-sharing member moving in, a distinction must be made according to who is the main tenant.

Model 1: All residents are jointly the main tenants of the flatshare

According to the general principles of contract transfer, as a member of the flatshare you would have to be responsible for rent liabilities that arose before you moved in. However, the landlord’s consent to your moving in should be understood in such a way that you are not liable for old debts. You are therefore only liable for rental obligations that have arisen since you moved in.

Model 2: The flatshare as a GbR is the main tenant

If the WG “as such” is the main tenant, the liability of the member of the flatshare moving in again depends on whether the landlord has reserved the right to consent to the change of tenants in the rental agreement. If not, the joining flat share member is also liable for rent obligations that were established before joining. If so, the new flat share member is not liable for old debts.

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