Private subletting - what is permissible and what is not?

What exactly is subletting?

The term subletting refers to a tenant letting his house or apartment in full (in which case he must keep at least one key, have objects stored in the apartment or similar) or in part to a third party or to another party for an indefinite or limited period of time. For this he must in turn receive a rent payment.

The principal tenant's own rental agreement remains unaffected by this, and his rental payments must continue to be paid punctually into the landlord's account.

As a tenant, do I have the right to sublet my apartment?

In principle, a tenant has the right to sublet according to § 553 of the German Civil Code (BGB). However, it is necessary to be able to prove a legitimate interest. This may be due to family or financial reasons and may only have arisen after the conclusion of the rental agreement. 

Likewise, a decrease in tenants due to their moving out or passing away and a longer stay elsewhere due to studies or work entitles the tenant to sublet.

Is it necessary to obtain the landlord's consent to sublet and can he refuse it?

Yes, you always need the landlord's consent to sublet. For his decision-making, he has the right to the following information: 

•  The reason for subletting

•  Names and addresses of the persons moving in 

•  Duration of the sublease

If you do not provide this information, consent may be refused. We recommend obtaining this permission in writing and setting a deadline at least one month before the move-in, because in the event of a dispute, the subtenant has the burden of proof. A registered letter is advisable in this case.

The landlord has a reasonable right to refuse subletting if

• the apartment would be overcrowded if additional persons moved in

• the new tenant might disturb the domestic peace or

• the has already had problems with him in the past

• the apartment is to be sublet for tourist purposes

It is also important to know that every new or further subtenant requires additional consent, unless the landlord has already granted indefinite and unrestricted permission in writing in advance.

If consent to subletting is not given without good cause, the tenant has a special right of termination and the right to take legal action - which is unfortunately often time-consuming.

If, on the other hand, the apartment is sublet without the landlord's prior consent, this constitutes a breach of contract which entitles the landlord to terminate the contract without notice.

Are there special cases that do not qualify as subletting?

If family members, relatives or even friends stay in your flat or house for a period of up to three months, they are not considered subtenants. Likewise, your parents, spouse, children and stepchildren as close family members can live permanently with you in the apartment. Domestic workers, caregivers, exchange students or au pairs can also be accommodated.

The prerequisite always being that there is no permanent overcrowding of the living space.

Things to consider before subletting and important contractual details

Before making the final decision to sublet your own four walls, we recommend that you critically weigh up the advantages and disadvantages as well as the costs and benefits. A subtenant will share your flat and thus your private space or even take it over completely. You should carefully screen applicants and definitely factor in this effort, such as conducting preliminary interviews. 

Even if you opt for acquaintances and people you trust, we recommend that you have a contract in place. Disputes concerning your home can be incredibly nerve-wracking, time-consuming and, in the worst-case scenario, even cost you money. Include any utility costs in the subletting payment. Think electricity, water, cable, internet and possibly wear and tear on the furnishings. Reach an agreement on cosmetic repairs, as you are liable to the landlord for any damage caused by the subtenant.

If you want to limit the term of the sublease, the reason for this must be included in the agreement to ensure legal validity. Notice periods for both parties depend on different factors and it is advisable to obtain binding legal information.

One more piece of advice from us: Subletting income must be declared in the income tax return.

With the right subtenants, the friendly consent of your landlord and a well-thought-out contract, a pleasant subtenancy can be to the advantage of both parties!