How are subletting and subletting related

Subletting

What to look out for when subletting

Dr. Britta Beate Schön
Legal Expert As of October 27, 2020

Dr. Britta Beate Schön

Britta Beate Schön is responsible for all legal issues at Finanztip. The doctor of law and attorney was head of the legal department at financial service providers such as Telis Finanz AG and Interhyp. Before that, she taught and researched in Japan as a DAAD junior professor for German and European law. She completed her studies in Münster, Geneva, Regensburg and Leipzig. You can reach the author at britta[email protected]

  • If you want to sublet your apartment, you need the permission of your landlord - otherwise you risk a warning, in the worst case even termination.

  • Your landlord usually has to agree.
  • You can use our template to ask your landlord for permission

Template: permission

  • In any case, you should conclude a sublease agreement. You can find a template for this here:

sublease agreement

What do you do with your rented apartment if you want to study abroad for a semester, if you work elsewhere for a while or if your children or your partner have moved out? Then one can Subletting makes sense be. So you can keep your apartment, but you don't have to pay the rent for it yourself.

In this guide, we explain what you have to consider when sub-letting - even if you are a sub-tenant yourself.

When can you sublet your apartment?

According to the law, you can sublet your apartment if you have a legitimate interest have it (§ 553 Paragraph 1 BGB).

A recognized typical interest exists if you, for example

  • study or work temporarily abroad or in another city,
  • have to sublet for financial reasons, because fewer people live in your apartment after moving out or after a death, or
  • You would like to take your life partner into the apartment (BGH, judgment of November 5, 2003, Az. VIII ZR 371/02).

As the main tenant, you are usually only allowed part of the apartment sublet. It is sufficient if you have left furniture in a room or use a room occasionally, for example on vacation (BGH, judgment of June 11, 2014, Az. VIII ZR 349/13). The apartment no longer has to be the center of your life (BGH, judgment of November 23, 2005, Az. VIII ZR 4/05). If you have the whole appartment If you want to sublet, your landlord does not have to agree (LG Berlin, decision of September 9, 2019, Az. 64 T 65/19).

What do you have to consider when subletting?

If you want to sublet your apartment, you should proceed correctly in order to rule out legal risks as far as possible. So you need the permission of your landlord (§ 540 BGB). Such a permit can already be in the main lease. In most rental contracts, however, it is stated that the tenant must ask the landlord for permission separately for each individual case. When writing to your landlord, you can use our sample letter as a guide.

Sample letter of permission to sublet

Here you can find our Sample letter download for permission to sublet:

For download

You should tell your landlord who should move in. Because without further information, your landlord does not have to agree. You do not have to provide any information about your income or creditworthiness. Special rules apply to commercial tenancies and their subletting (BGH, judgment of November 15, 2006, Az. XII ZR 92/04).

Subletting to tourists

Even if your landlord allows subletting, you may not automatically rent out your apartment to tourists as a holiday apartment or offer it via Airbnb (BGH, judgment of January 8, 2014, Az. VIII ZR 210/13). You risk a termination. But first your landlord must warn you. The Berlin Court of Appeal has confirmed the termination of the lease without notice because the tenant continued to offer the apartment via Airbnb despite a warning (decision of February 3, 2015, Az. 67 T 29/15).

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When do you not need a permit?

Want with you permanently close family members move in, then this is not a sublet. This includes your spouse and their children, parents and stepchildren. Even if you set up a room for domestic workers or carers in your rented apartment, you do not have to ask your landlord for permission.

Should only temporary relatives living with you, one cannot speak of subletting. Relatives include siblings, grandchildren, son-in-law or daughter-in-law. You don't have to inform your landlord about overnight guests either. However, the visit may not be longer than six weeks stay. If the relatives or your visit stay longer, you should definitely inform your landlord.

Important: Do you want with your friend or yours girlfriend move in together, you have to ask your landlord for permission. But he has to agree, because you have the right to live with someone else - provided the apartment is big enough.

What can you do if your landlord refuses permission?

Your landlord can only refuse permission in two cases:

  1. if the apartment is overcrowded (more than one person per room) or
  2. if the sub-tenant is unreasonable for the landlord. This can be the case if the sub-tenant has already been the main tenant and has not paid his rent.

If the landlord rejects the requested subletting without sufficient reason, you as the tenant have a special right of termination (Section 540 (1) BGB). In addition, you can even demand compensation in the amount of the lost sublease. In one case that the BGH had to decide, the landlord had to pay 7,475 euros plus interest to the tenant because he had wrongly refused permission to sublet (BGH, judgment of June 11, 2014, Az. VIII ZR 349/13 ).

If the landlord rightly refuses to sublet because the tenant has only stated that he wants to look for a subtenant, the tenant cannot terminate the contract (OLG Celle, judgment of March 5, 2003, Az. 2 W 16/03).

What should you watch out for in the sublease agreement?

We recommend that you have one each time you sublet written contract put on. You should not rely on verbal agreements.

The sublease is a regular lease that the main landlord does not need to approve. In the sublease agreement, the tenant of an apartment undertakes to leave the apartment or part of the apartment to the subtenant. In return, the subtenant guarantees to pay rent for it.

The sub-tenant has basically the same rights and obligations in relation to the main tenant - also called sub-lessor - as the main tenant has in relation to the landlord. You should therefore refer to the content of the main rental agreement.

A sublease should be The following points contain:

  1. Names of the contracting parties,
  2. exact description of the apartment (address, floor),
  3. the rent and additional costs to be paid as well as the deposit,
  4. Reference to the main lease, in particular to the rules on cosmetic repairs
  5. Start and end of the lease,
  6. Signatures of both contracting parties.

The same applies to written sublease contracts: If nothing specific has been agreed on cosmetic repairs or ancillary costs, the subtenant does not have to pay these. It is therefore advisable to use standard contracts in the case of a sublease agreement and to supplement these as required. You can do this our sample contract that we make available as a download.

Sample letter of sublease agreement

Here you can find oursSample template for a sublease download:

For download

What rights do you have as a subtenant?

As a sub-tenant, you have your own tenant rights vis-à-vis the main tenant. You can reduce the rent if the leased rooms are defects exhibit. To do this, you should set a deadline for remedying the defects in order to give the main tenant the chance to have the defect remedied by the owner.

The statutory protection against dismissal also applies to you. The main tenant can only give you a notice of three months and only if there is a legitimate interest cancel. It is different if you have signed a temporary sublease contract. The protection against dismissal in general tenancy law does not apply to subletting if the main tenant has rented the apartment in whole or in part with furniture (Section 549 (2) No. 2 BGB). If, on the other hand, the main tenant is effectively terminated by his landlord, the sub-tenant must vacate the apartment at the same time.

As the main tenant stick You to your landlord for Damagethat arise from the sublease. You may also have to pay compensation in the event that the subtenant moves out late after the main tenancy has ended. You can reclaim these expenses from the subtenant. Therefore, you should always ask for a deposit from your subtenant.

Can your landlord terminate if you sublet?

If you sublet without your landlord's permission, you run the risk of termination without notice (Section 543 (2) No. 2 BGB). Your landlord must have asked you beforehand to end the subletting (Section 543 (3) BGB). So he has to see you beforehand warned to have.

On the other hand, you don't risk anything if your landlord should have agreed anyway if you had asked him.

If your landlord has refused to sublet without justification or has not contacted you at all, although you have asked for permission in good time, he may not terminate the contract due to unauthorized subletting (BGH, judgment of February 2, 2011, Az. VIII ZR 74/10). The situation is different if the landlord has been deceived about the type and scope of the subletting. Then the landlord can cancel.

Can your landlord ask for a sublease surcharge?

If subletting is permitted, the landlord may increase the rent (Section 553 (2) BGB). As a tenant, however, you have to agree to this. If you are not, the rent does not increase, but you cannot take on a subtenant either.

In the case of real subletting, an increase of up to 20 percent of the achieved sublease or of up to 10 percent of the net rent deemed appropriate. The landlord can even ask for a surcharge of up to 25 percent if even the sublease surcharge does not reach the local comparative rent (LG Berlin, decision of 7 July 2016, Az. 18 T 65/16).

Do you want one as a tenant Significant other your landlord may only include the Advance payment for utilities increase because he expects higher water consumption, for example.

Foreclosure in the case of an apartment with a subtenant

If a subtenant lives in the apartment, eviction is not possible after the eviction claim has been won. A bailiff is not allowed to evacuate if he only finds the subtenant in the apartment. The sub-tenant is not listed by name in the court's documents. An eviction title against him is inadmissible because the enforcement is not directed against him.

This applies even if there is a suspicion that the property was only granted to the third party in order to thwart the eviction (BGH, decision of August 14, 2008, Az. I ZB 39/08). The honest tenants should be protected and the bailiff shouldn't have to clarify any complicated legal issues on site.

Dr. Britta Beate Schön

Dr. Britta Beate Schön

Britta Beate Schön is responsible for all legal issues at Finanztip. The doctor of law and attorney was head of the legal department at financial service providers such as Telis Finanz AG and Interhyp. Before that, she taught and researched in Japan as a DAAD junior professor for German and European law. She completed her studies in Münster, Geneva, Regensburg and Leipzig. You can reach the author at [email protected]

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