Change of job, move abroad, a changed life situation: There are many reasons to move in as a subtenant – and just as many reasons to sublet an apartment or a room.
In Germany, the decisive question is whether the landlord has to accept this subletting or whether in the end both the tenant and his subtenant may end up on the street. Because the landlord’s permission is a basic requirement in most cases.
When it comes to subletting, what exactly tenants want to offer for subletting makes a decisive difference: the whole apartment or just part of it? The relationship with the future subtenant is just as relevant: is it a parent, partner or a complete stranger?
- What is considered subletting in Germany and what is not?
- Do you have the right to sublet in Germany?
- Always welcome lodgers
- The shared flat: to sublet a room
- Subletting the whole apartment
- Subletting to tourists: legal gray area
- When the tenant becomes the landlord: Things to know about tenancy law
- What should the main tenant consider when subletting in Germany?
What is considered subletting in Germany and what is not?
Subletting is characterized by the fact that a subtenant pays rent to a main tenant and is allowed to use his or her apartment or parts of the apartment. Also shared apartments (WGs) are often organized through sub-leases. As a rule, this type of rental must be approved by the landlord of the main tenant (Section 540 (1) BGB). The tenant is obliged to provide evidence of permission in the event of a dispute.
Taking in certain groups of people does not count as subletting and therefore does not require a permit (see BayObLG GE 97, 1463). This includes:
- Close family members such as spouse, parents or children
- Visitors, even over longer periods of time (around 6 to 8 weeks)
- Domestic workers or nursing staff
Do you have the right to sublet in Germany?
According to the BGH ruling, anyone who can show a legitimate interest in partially subletting their apartment has the right to sublet ( BGB, 553 ). This claim does not apply if the entire apartment is rented out. Legitimate interests include, for example:
- if the tenant is financially dependent on the sublease, for example due to double housekeeping for professional reasons
- if you cannot use your apartment temporarily for professional reasons
- Personal reasons such as not wanting to live alone in old age
- Admission of the parents to the apartment after the spouse moves away
- Admission of a subtenant after divorce and departure of the previous spouse and co-tenant
- Admission of a subtenant to establish a long-term shared apartment
- Admission of siblings who are in need of housing
- Admission of a subtenant for childcare
If the landlord denies the tenant this right, the tenant can sue for his right or have a special right of termination. The exclusion of subletting to third parties without the express written consent of the landlord, which is often contained in rental contracts, is ineffective ( BGH in NJW 1991, 1750 ).
IMPORTANT: The rent from the sublease must be declared as income in the income tax return.
In the underlying case, the Federal Court of Justice ruled in favor of a married couple from Hamburg who wanted to sublet parts of their apartment for a period of several years abroad. The landlord forbade this and had to pay damages to the tenants. The landlord would have the right to refuse partial subletting if
- the tenant wants to sublet the apartment to tourists
- the apartment would be overcrowded by another resident
- There are signs that the subtenant is unreasonable and could disturb the peace of the house
Always welcome lodgers
If you sublet without permission, you risk termination without notice . Therefore it always makes sense to get the landlord’s permission.
Sometimes, however, this is not necessary: For example, close family members are always allowed to move in, even without the express permission of the landlord.
However, only one’s own parents, children or spouse are considered close. For example, siblings or the partner do not count. In addition to close relatives, nursing staff can also move in as sub-tenants without the express permission of the landlord.
Incidentally, there is always an obligation to inform the landlord. He should always know who is staying in his apartment for a longer period of time.
The shared flat: to sublet a room
If you only want to sublet part of your rented apartment , the law may be on your side. Paragraph 553 BGB stipulates that the landlord must grant permission to sublet a room if the tenant has a legitimate interest in doing so.
This legitimate interest includes personal as well as economic reasons:
If the rent can suddenly no longer be borne alone – be it due to the loss of a job or the move out of the partner – the tenant is dependent on the income from subletting and has a legitimate interest in it. This also applies if a new partner wants to move in or older people want company.
The landlord can only refuse permission if the apartment is too small for several tenants or if the subtenant could, for example, disturb the peace of the house.
Subletting the whole apartment
If the entire apartment is to be sublet, there is no legal entitlement to permission from the apartment owner. However, if the landlord refuses to sublet, the tenant can exercise his special right of termination. But that only helps him if he wanted to get out of his lease anyway and had too long a notice period, as was the case with old contracts.
Subletting to tourists: legal gray area
During the Oktoberfest in Munich, during the Carnival in Cologne or all year round in Berlin: In many German cities you can earn extra income by renting your guest room or your entire apartment to tourists. But there are many traps lurking there.
You need the landlord’s permission
Tenants usually need the landlord’s permission , regardless of whether they are sublet for a fee or if another person moves in with them. If you do not obtain this permission, you risk a warning and, if you breach it again, even a termination of the rental contract . However, landlords only have to agree to subletting if the tenant has a legitimate interest. Therefore, a commercial sublease can even be classified as a particularly serious breach of contract, which leads to termination without notice.
The main tenant is always responsible for the damage that overnight guests cause in the apartment or house.
You can leave their guest room to anyone
Apartment owners can basically leave their guest room to anyone . However, the respective homeowners association may make a different agreement and prohibit subletting to holiday guests who change on a daily or weekly basis. This was decided by the Federal Court of Justice in 2009 (BGH Az. V ZR 72/09). It looks different if the entire apartment is to be rented out regularly to paying overnight guests. In many cities, a ban on misappropriation then applies. Among other things, this prohibits the conversion of apartments into holiday apartments.
Anyone who sublet for a fee should remember to state this income in their tax return . Otherwise there is a risk of trouble with the tax authorities – this applies to tenants as well as owners.
When the tenant becomes the landlord: Things to know about tenancy law
The main tenant is liable for damage to the rental property. Like every landlord, they should protect themselves: ask for a deposit, clarify cosmetic repairs, settle operating costs.
What should the main tenant consider when subletting in Germany?
The sublease agreement should definitely be concluded in writing. It should contain:
- whats the rent
- notice period
- Period of subletting
- Additional costs
- Rental deposit regulation and amount
- Rooms that are made available to the subtenant for use
- Objects and devices in the kitchen and bathroom that may be shared
- Cosmetic repairs arrangements
The regulations for cosmetic repairs are important against the background that the main tenant is liable for all damage and disruptions that occur on or in the rented property during the lease. If nothing is agreed, the subtenant does not have to pay for damage, even if he caused it. It is therefore necessary to be well informed beforehand, to take a close look at the potential subtenant and to secure yourself with the contract.
In order to secure yourself financially, you should also agree on a rental deposit in the rental agreement, which the sub-tenant deposits as security for the main tenant. A rent deposit guarantee is also suitable as protection against loss of rent or to repair any damage. It is also advisable to request a rental debt exemption certificate before signing the contract.
When moving in, you should also have a handover report to record the state of the rented rooms at the respective point in time. This means that there are no disputes about whether or not there was a scratch in the ground when it was moved in.
Other points of contention that should be clarified beforehand are visiting and accommodation rules and whether and where smoking is allowed.