👥 Subletting and shared flats
In brief
Without the landlord's permission you may not hand the flat over to third parties, not even as a sublet.
If, after the agreement was concluded, a legitimate interest arises to hand part of the flat over to third parties, you can demand permission. This can be, for example, a flat that is partly empty because of a job change. The landlord may refuse if there is good cause in the person of the third party or the flat would be overcrowded.
If the landlord agrees only against a surcharge, this may be permissible if subletting would otherwise be unreasonable.
In a shared flat a lot depends on whether everyone is on the main tenancy agreement or whether there are sublease agreements. Read your agreement carefully.
Step by step
- Obtain permissionAsk the landlord for permission in writing. Name the person and the reason.
- Conclude an agreementPut the rent, service charges and notice periods in writing with the subtenant.
- Check a refusalAsk the tenants' association (Mieterverein) whether the refusal was permissible.
- Clarify shared-flat rulesClarify who is on the main agreement and who owes what to whom.
Deadlines
- Subletting without permission can lead to termination.
- You are also liable for the subtenant's misconduct (§ 540 Abs. 2 BGB).
- The landlord may make consent conditional on a rent surcharge if it would otherwise be unreasonable (§ 553 Abs. 2 BGB).
- On joint liability, individual flatmates moving out and the deposit in a shared flat, this Wegweiser gives no verified statements.
In depth · legal basis, figures and practice – for advisers and professionals
Permission requirement, § 540 BGB
Without the landlord's permission, the tenant is not entitled to hand over use of the rented property to a third party, in particular to sublet it. If the landlord refuses permission, the tenant can terminate the tenancy extraordinarily with the statutory period, unless there is good cause in the person of the third party. The tenant is responsible for fault attributable to the third party in using the property even if the landlord has given permission (para. 2).
Entitlement to permission, § 553 BGB
If, after the tenancy agreement is concluded, a legitimate interest arises for the tenant to hand part of the residential space over to a third party for use, he can demand permission from the landlord. This does not apply if there is good cause in the person of the third party, if the residential space would be overcrowded or if the handover cannot reasonably be expected of the landlord for other reasons. If the handover can reasonably be expected of the landlord only with an appropriate rent increase, he can make permission conditional on it. Deviating agreements to the tenant's detriment are invalid.
Gap
For questions typical of shared flats (several main tenants, individual tenants moving out, joint debtors), no primary sources were evaluated for this Wegweiser. Please seek advice in the individual case.
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