In Germany, there are no shortages of shared flats. Do you know what is important in a flatshare rental agreement?
- In Germany, there are no shortages of shared flats. Do you know what is important in a flatshare rental agreement?
- Flat share: These advantages and disadvantages have separate rental contracts for the flat share members
- What are the advantages and disadvantages of a flat-sharing agreement with a main tenant and several sub-tenants
- What are the advantages and disadvantages of a joint tenancy agreement for a shared apartment?
Apartments are in short supply, especially in German university cities. In addition, the rents are usually prohibitively high. Not affordable for most students. Even if they get BAföG, have generous parents and work on the side. Not to forget: attend lectures and seminars. Deliver presentations and term papers. Write exams. A tried-and-tested alternative, especially in university cities, is to group together to form a shared flat. As soon as the rent and the ancillary rental costs are distributed among several people, slightly larger apartments can be rented.
A suitable, larger apartment for the shared flat is usually faster to find than an apartment for a single tenant. Let’s assume that the members of a flat share are pretty sympathetic. And they believe that at least they can live together during their studies. With that, the emotional side of a shared apartment would already be checked off.
But what about the legal side? That means: Not only single tenants, but also shared apartments conclude a rental agreement with the landlord of an apartment. And this is exactly where flat share tenants should be particularly careful and careful. A distinction is made between three contract models that members of a shared apartment can conclude with the landlord.
A tip in advance: The shared apartment also needs at least a household insurance. We recommend a household insurance with a “flat share agreement”. Otherwise, damage can be expensive.
In the first variant of the flat share rental agreement, there are several individual rental agreements. This means that each member of the shared apartment concludes a separate rental agreement with the landlord. The second variant has a main tenant and a sub-tenant. In the third variant of the rental agreement for shared flats, there is a joint rental agreement between all flat share members and the landlord. All three variants that come into question for a flat share lease have advantages and disadvantages for the shared apartment. The flat share members should therefore discuss which flat share rental agreement suits them.
Flat share: These advantages and disadvantages have separate rental contracts for the flat share members
With this variant of the rental agreement, each individual member of a shared apartment concludes a separate rental agreement with the landlord.
As a rule, such a flat share rental agreement includes one room for each flat share member as well as the right to share the common rooms. These common rooms mainly include the kitchen, the hallway or hallway and, of course, the bathroom.
This form of a flatshare rental agreement has disadvantages for both the landlord and the members of a shared apartment.
- For example, the landlord has to expect a comparatively high administrative burden with separate flat-share leases.
- The disadvantage for the shared apartment is that the individual members of the flat share cannot choose their roommates. Therefore, separate rental contracts with each individual member of a shared apartment are rather rare in practice.
For the sake of completeness, the most important features of a rental agreement that is concluded with each individual member of a shared apartment are:
• Each member of a shared apartment must pay the rent agreed in their rental agreement separately.
• The landlord alone bears the risk of a tenant defaulting on rent payments. The entire residential community does not have to be liable for possible rent arrears by one of its members.
• Each tenant alone is fully liable for possible damage.
• Each tenant can claim back the rent deposit he paid separately from the landlord regardless of the remaining members of a shared apartment.
• Annoying for the landlord: He has to prepare a separate utility bill for each member of the shared apartment. As a result, every tenant, and not the entire community, has to pay any additional operating costs.
• Problem: The so-called consumption-dependent operating costs (water, electricity, heating) are often not attributable to the individual members of a shared apartment. It is not uncommon for stress here.
• Each member of a shared apartment can independently terminate the rental agreement. Conversely, so does the landlord, of course.
What are the advantages and disadvantages of a flat-sharing agreement with a main tenant and several sub-tenants
With this type of rental agreement, one member of the shared apartment is the main tenant, the others are sub-tenants. You conclude sublease agreements for individual rooms with the main tenant.
Important: The main tenant of a shared apartment needs the landlord’s approval to sublet. According to the general legal opinion, the main tenant is entitled to permission to sublet if there is a legitimate interest in subletting.
Tip: The flatshare lease agreement between the main tenant and the landlord should already regulate the permission to sublet. If the landlord has given the main tenant permission to sublet in the lease, this may only be revoked for so-called important reasons.
However, if the lease agreement between the main tenant and the landlord does not regulate the permission to sublet, the main tenant must obtain separate approval from the landlord for each individual subtenant or sublease. If a flat-sharing community opts for the rental agreement variant with a single main tenant and several sub-tenants, the following points must be observed:
- The landlord’s contractual partner is exclusively the main tenant. He is responsible for the contractually agreed rent payment.
- The landlord has no payment claims against the subtenants.
- Therefore, the landlord alone bears the risk of the main tenant’s possible insolvency.
- The main tenant, in turn, is entitled to payment of the sublet rent agreed in the sublease agreement from each individual subtenant in a shared apartment.
- Important: The sub-tenants are not liable for possible payment defaults by other sub-tenants in a shared apartment.
- In contrast, the main tenant is solely liable to the landlord for any damage in the rooms of a shared apartment.
- The main tenant of a shared apartment, in turn, has claims for damages against the respective subtenant in accordance with the sublease agreement.
- Only the main tenant pays the rental deposit. This means that only the main tenant can request the rental deposit back from the landlord when moving out of the apartment.
- The sub-tenants in a shared apartment pay a rent deposit, if at all, to the main tenant only and not to the landlord.
- As a result, when moving out of the apartment in a shared apartment, the sub-tenants can only reclaim the rent deposit from the main tenant and not from the landlord.
- The landlord prepares an annual utility bill for the main tenant. In turn, only the main tenant of a shared apartment is obliged to pay any additional payments from the utility bill.
- As a rule, the main tenant and his sub-tenants agree on the proportionate allocation of the operating costs in the sublease agreements.
- If the landlord is entitled to additional operating costs, the main tenant can share these payments with the sub-tenants and demand them from them.
- It goes without saying that the sub-tenants are not liable for additional operating costs paid by the other sub-tenants in a shared apartment.
- A main rental contract can only be terminated between the main tenant and the landlord and vice versa.
- Each sub-tenant must terminate the tenancy with the main tenant. In return, the main tenant can only terminate a tenancy with the sub-tenant.
- There are no contractual relationships between the landlord and the sub-tenants. Therefore, there is no possibility to terminate a rental agreement.
What are the advantages and disadvantages of a joint tenancy agreement for a shared apartment?
This is probably the most common variant of the flat share lease. As part of the tenancy, all members of a shared apartment are equal parties to the landlord. So, all are liable “jointly and severally”, that’s the technical term. The members of a shared apartment should be aware that this variant of a rental agreement for shared apartments is not infrequently associated with problems.
As soon as a member of the shared apartment wants to leave the lease and another tenant enters the lease in his place, this must be agreed in the form of a change of tenant. The technical term for this is “exempting debtor change“.
Important: As a member of a shared apartment, no tenant has the basic right to have the landlord release him from the rental agreement and subsequently another person to be included in the shared apartment, i.e., in the rental agreement.
Basically, the members of a shared apartment, if they conclude a joint rental agreement with the landlord, form what is known as a civil law partnership (GbR). This has the following legal consequences:
- All members of a shared apartment are liable to the landlord for the rent in full. Theoretically, the landlord can only demand the full rent from a single member of the shared apartment. But not from everyone at the same time.
- If the landlord does this, the relevant member of a shared apartment has a so-called compensation claim against the other members of a shared apartment. The amount of this right to compensation is based on the agreements made by the members of a shared apartment.
- Consequence: All members of a shared apartment bear the full risk that one of their roommates cannot pay.
- The joint and several liability of all WG members also applies to possible damage to the rented property. The landlord can claim damages in full from each individual member of a shared apartment. The tenants regulate the respective compensation claim internally.
- The landlord may demand the rental deposit in full from each individual member of a shared apartment. A claim to repayment of the rental deposit only exists as soon as the rental agreement with all members of the shared apartment ends. The entitlement does not exist if a single member of the shared apartment leaves.
- The rental deposit often stays with the landlord. There is a simple reason for this: The flat share members, i.e., the GbR partners, are only allowed to reclaim the rent deposit from the landlord as a whole and as a group.
- One of the workloads for the landlord is that he only has to prepare a single operating cost statement for the entire flat share. In addition, there is no legal obligation to submit a separate utility bill as soon as a tenant leaves the shared apartment.
- The same applies as for rent and deposit: The landlord is entitled to the full back payment of operating costs from every member of the shared apartment. The proportional compensation of the additional operating costs is made as usual in the internal relationship of the flat share.
- Each flat share member is liable for payment defaults by another or even by several other flat share members.
- The landlord must give notice of termination to all members of a shared apartment. He may not terminate the rental agreement with only one flat share member.
- From this it inevitably follows that not a single member of the flat share may terminate the flat share rental agreement, but the cancellation of the flat share rental agreement must be pronounced by all flat share members.