Subletting allowed or not?
A sub-tenant relieves the household budget. However, subletting is not allowed without further ado. The landlord must be asked. He may only refuse the subtenant for important reasons. If those involved stick to a few rules of the game, everyone benefits.
The law regulates the subletting of part of the living space in Tenancy law in § 553 BGB. A certain system is given here.
Subletting requires the consent of the landlord
- The first key principle is that the tenant has a legal right to sublet part of his home. The second principle is that the landlord must generally agree to the sublet and allow the sublease. A third guideline states that the landlord may refuse permission in exceptional cases if there is an important reason in the person of the subtenant. A number of aspects arise from these three principles.
- There is no sublease if you only take in close family members in the apartment. This includes the spouse, registered life partner, children and parents. For this it is sufficient if you inform the landlord. The inclusion of these persons is still part of the contractual rental use.
- If you enter into the sublease without the landlord's permission, you risk them termination of the landlord. If you, as a landlord, refuse to sublet for no reason, you run the risk of having to pay damages.
Not every subtenant is allowed
- You are obliged to inform the landlord about the person of the subtenant (BGH VIII ZR 371/02). This is the only way for them to check whether they can refuse permission to sublet because of an "important reason" in the person of the subtenant.
- Overcrowding in the living space is an important reason. An important reason also exists if the landlord cannot be expected to sublet for certain reasons. This is the case when the subtenant is a completely socially incompatible person. If the landlord cannot find an "important reason", he has to agree.
- As a tenant, you also need a "legitimate interest" in subletting. One such interest may be that you want to top up your household budget. You save yourself an expensive one relocation. Or you spend the week away from work for work and want your home to be supervised. It is important that the legitimate interest only arose after the lease was signed. Pre-existing interests cannot be taken into account.
- If you want to sublet your entire apartment, § 540 BGB applies. In this case the landlord can refuse permission. Then you can also choose a temporary one rental contract terminate early.
Subletting a commercial space - you should consider that as a tenant
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Make sure that your rental contracts are synchronized
- You should always conclude a written sublease agreement with the subtenant. You can use a special sublease contract, preferably a model contract, for this purpose. The stipulation must be the content of the main rental agreement. In particular, it is important that the notice period in the main lease agrees with that in the sublease. Otherwise you risk damages to the sub-tenant if the landlord terminates you and the sub-tenancy has not yet ended.
- In the case of a space in a shared apartment, the structure of the rental agreement is important. If a certain person is the main tenant, other roommates can move in as sub-tenants. Alternatively, depending on the structure of the main rental agreement, each of the shared apartments can join the rental agreement as the main tenant.
Subletting is a matter of trust for everyone involved
- Subletting is only worthwhile if you can assess the person of the subtenant. After all, he lives in your apartment and may have access to your premises. The sublet room should itself form a separate room. Under certain circumstances, the stress factor with an unpleasant subtenant is higher than the income.
- The provider airbnb mediates guests. If a guest only moves in temporarily, he is a visitor. It is not a sublease. From a period of around six weeks, the courts assume permanent residence and thus sublease.
- As soon as you sublet to changing guests, it is a matter of misappropriating your living space. The landlord does not need to accept this either. He has an interest in knowing his tenant. After all, his property is not a hotel.
Subletting is a serious issue. It is often the subject of legal disputes. So you should already have solid reasons to get a subtenant into the apartment. Living together in a confined space can be problematic. Be sure to observe the legal requirements. As a tenant, you risk yours Tenancy and as a landlord compensation for damages.
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