In Germany, if the tenant wants to accommodate another person in his apartment, the law grants him a legal right to sublet the apartment , provided that he can justify the request to sublet with a legitimate interest
Before you sublet the apartment in Germany, you have to remember that as the tenant, you must take into account that the landlord is generally only obliged to let the people named in the rental contract live in the apartment. He does not need to tolerate third parties in the apartment who are not designated as tenants in the rental agreement. The law only allows an exception if you as the tenant assert justified interest in subletting to a third person into the apartment.
Sublet the apartment to family members in Germany
1. Short-Term stay
The admission of family members into your flat is fundamentally part of the contractual use of the rental property. It is then not a matter of subletting the apartment. It is normal and common practice that a father who rents an apartment is also entitled to take his children into the apartment.
The same applies if a hitherto single person marries and lets the spouse or registered partner move into the apartment. It is then a matter of dependent use of the rented property. This is part of the contractual use of the rental property. It is characteristic here that a common household is kept and the family member is not given the apartment for independent use.
Long-term admission of a family member that goes beyond a mere visit does not require permission, but should be communicated to the landlord in writing. However, after a “visiting time” of 4 to 6 weeks, there is a presumption that the recording is no longer to be viewed as a visit, but is intended to be permanent, especially if the visitor moves his center of life into the apartment and this is infact outwardly visible.
There is only a limit if the apartment is overcrowded . This can be the case if a tenant pretends to the landlord that he will move into the apartment alone and then wants to take in a suddenly appearing wife and seven children in the apartment as well. Here, the landlord could probably challenge the lease because of fraudulent misrepresentation. Overcrowding was specifically confirmed if a 30 m² top floor apartment was to be occupied by 2 adults and 3 school-age children or a 57 m² apartment by 2 adults and 6 children.
Ultimately, it depends on the individual case in which the legitimate interest must be justified.
Special cases when family can stay without subletting the apartment in Germany
- The tenant can always take his spouse / partner after marriage or children into the apartment without having to ask the landlord (BayObLG RE WuM 1997, 603). In these cases, it is not a question of subletting, but of dependent use, since taking in family members is always part of the contractual use of the rented property.
- If the tenant wants to take in a sibling , the legitimate interest must be specifically justified (BayObLG RE WuM 1984, 13), e.g. need of care, housing shortage.
- The parents of the tenant may in particular include in the apartment when a parent is in need of care and the legitimate interests can be specific reasons (BayObLG ZMR 1998, 23) (here maintenance obligation child / parent). The same applies to the tenant’s brother (BayObLG ZMR 1994, 87).
- Taking in a relative to help them deal with family problems.
- Life partners with whom the tenant is not married and not living in a registered civil partnership are not family members. In this case, the tenant must ask the landlord for permission. If it is not a temporary companion in life, the legitimate interest and thus the right to sublet is recognized (BGH VIII ZR 371/02, WuM 2003, 688).
Sublet the apartment to your boyfriend or girlfriend in Germany
Is your boyfriend or girlfriend a family member?
Family members do not include fiancés and daughters-in-law. The boyfriend or girlfriend is not a family member either. If you do not live together with the tenant in a relationship similar to that of marriage or in a partnership, the tenant’s legitimate interest can hardly be justified without further justification.
Do you have a legitimate interest to sublet the apartment to your boyfriend or girlfriend?
The interest can develop into a justified interest if the tenant goes away for medical treatment in the long term, wants to avoid the vacancy of the apartment and therefore lets the friend or a significant other move in (Schmid Mietrecht 2nd ed. P. 344).
The legitimate interest will be rejected if the sub-tenant (boyfriend or girlfriend) was only supposed to look after the apartment during the tenant’s temporary stay in another city (LG Mannheim WuM 1997, 369). If this is associated with a reduction in the cost of double housekeeping, the legitimate interest may again be justified (LG Berlin NJW-RR 1994, 1289),
Cases where a boyfriend or girlfriend is a legitimate interest to sublet the apartment
- Admission of an adult with a child (boyfriend or girlfriend) in order to reduce housing costs, to improve the care of one’s own children or to care for the toddler of the main tenant by the sub-tenant (AG Büdingen WM 1991, 585).
- No legitimate interest with the aim of reducing the rent burden, unless the financial situation is so bad that this is the only way to maintain the tenancy (e.g. in the event of unemployment: LG Mannheim WuM 1997, 263)
Are you subletting to your boyfriend or girlfriend just for the income?
A legitimate interest will be rejected if the main tenant is sublet for the purpose of generating additional income without being dependent on it because of the deterioration in his economic situation.
Are you subletting to your boyfriend or girlfriend because they can’t find a place?
Mere humanitarian interests of the tenant are usually not sufficient, as the legitimate interest must arise from the immediate sphere of the tenant.This was denied in a case in which an Iranian had taken a pregnant African woman into the apartment out of pity (LG Berlin WuM 1994 , 326) ..
Can you sue your landlord in Germany for refusing to let you sublet the apartment to your family or boyfriend or girlfriend?
If the tenant can prove a legitimate interest, he has a legal right to the landlord allowing the subletting. If the landlord refuses permission without being able to justify an important reason in the person of the designated subtenant, the main tenant can sue in court for his claim to subletting. The court ruling then replaces the landlord’s consent . You can then easily sublet your apartment to your boyfriend or girlfriend.