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Subletting in Germany – What you need to know

The most relevant regulations from tenancy law, the regulations for renting out as a holiday home as well as the special case of social housing, which you should consider for successful subletting.

You are planning a long work-related stay abroad or are going on a trip for several months. What will you do with your apartment in Germany in the meantime? An unoccupied apartment can become a financial burden. In addition, there is the worry of leaving your apartment unattended for several months. This does not have to be the case! You can sublet your entire apartment as a temporary furnished apartment while you are away.

In the following, we explain the most relevant regulations from tenancy law, the regulations for renting out as a holiday home as well as the special case of social housing, which you should consider for successful subletting.

 

What does subletting in Germany mean?

Subletting occurs when a rental agreement is concluded between the main tenant and the subtenant. If you, as the tenant, allow another person to use your rented apartment in return for payment, this is a subletting. The law calls this “transfer of use to third parties” (§ 540 BGB). 

Legally, there is a difference between the subletting of the whole apartment (§ 540 BGB) and the subletting of a part of the apartment (§ 553 para. 1 sentence 1 BGB). 

In this article, we focus mainly on the subletting of the entire apartment – i.e. the transfer of use to third parties (§ 540 BGB). Provisions for partial subletting of an apartment are specified here in individual cases only.

For more important information on renting out your furnished apartment on a temporary basis, read our article The legal situation regarding renting out a furnished apartment on a temporary basis.

Regulations under tenancy law

Permission to sublet

As a tenant of an apartment, you must always obtain permission to sublet from your landlord. This permission is required by law for full and also partial subletting of living space (§ 540 BGB). Your landlord/-lady can give you permission either in advance through a clause in the rental agreement or on request for specific subletting. In addition, your landlord/-lady is entitled to know who will be occupying the apartment.

If you sublet without the necessary permission, you can be warned and even terminated as the main tenant responsible for the apartment. However, in this instance, the landlord must generally give you a reasonable period of time to terminate the subletting agreement (§ 543 para. 3 sentence 1 BGB

According to the current case law of the Berlin Regional Court, even listing the apartment for subletting without the landlord’s permission can lead to a warning and ultimately to termination. We recommend that you obtain permission to sublet from your landlord before listing your apartment on Wunderflats.

If the landlord refuses to give you permission to sublet in whole or in part, you as the tenant can terminate the tenancy for your part with a notice period of around three months (§ 540 para. 1 sentence 2 BGB, § 573 c para. 1 sentence 1 BGB). 

If you rented your furnished apartment on a temporary basis through Wunderflats, the tenant is not allowed to sublet the entire apartment or individual rooms. It is prohibited by a clause in the Wunderflats rental agreement.

Rent increase for subletting

For the period of subletting, under certain conditions, your landlord may demand a subletting surcharge. This is especially true for partial subletting of the apartment (§ 553 para. 2 BGB) and is also possible under certain circumstances for complete subletting. A subletting surcharge is always a case-by-case decision. A stipulation in the rental agreement that you must pay a monthly surcharge for subletting, in general, is invalid. Furthermore, a landlord/-lady can never levy a subletting surcharge retroactively. 

Liability in respect of the landlord

As the tenant of the apartment, you are liable to your landlord for any damage or disturbance caused by noise from your subtenants. This applies even if your landlord has agreed to the subletting.

Therefore, we recommend that you inform your subtenant about the House rules or house regulations and create a protocol for the handing over of the apartment. Here you will find our tips for a smooth handover of the apartment and a template for the handover protocol. 

Right to sublet in the case of partial transfer of the apartment

If you only want to sublet part of your apartment, as a tenant you have a right to sublet. In order to do so, you must have a legitimate interest in the partial subletting. This is usually for economic and/or personal reasons, for example, because you want to take in a friend or your income has decreased. It is important to note that this justified interest must have arisen after the conclusion of your rental agreement (§ 553 para. 1 sentence 1 BGB).

Regulations for renting out holiday apartments

Provisions on misuse

A permit for subletting granted earlier does not automatically include permission to rent to tourists on a daily basis. As a rule, subletting is intended for a longer period of time. Under certain circumstances, letting to tourists falls within the scope of misuse of living space (Zweckentfremdung).

If you want to rent out your apartment to tourists, you may need an official permit. This is because the so-called ban on misuse may apply. This prohibits any use of living space that is not for permanent living. The legal regulations in this regard differ depending on the region, city, and even municipality. If you are planning to sublet, you should therefore definitely check the regulations specific to your region. We have compiled an overview for you on the misuse of living space for temporary furnished accommodation.

Regulations from the building law

In order to be allowed to use your apartment as a holiday apartment for a constantly changing group of people, you must have a special building permit. This type of letting requires a building permit for a change of use of the apartment, as the Higher Administrative Court of Berlin-Brandenburg stated in its decision.

The specific regulations are based on the building codes of the individual federal states. You can find the relevant authority online.

As a Wunderflats landlord, these regulations do not affect you, as you offer your apartment for actual living and not, for example, as a holiday home. 

The special case of social housing

Are you the main tenant of a social housing apartment and would like to sublet more than half of your living space? If so, a special regulation applies according to the law to protect the use of social housing (§ 21 WoBindG): In this case, subletting is only permitted to persons with a “Wohnberechtigungsschein” (WBS). This is an official certificate tenants require to rent a state-subsidized apartment. When looking for subtenants, you must ensure that they are eligible as tenants of social housing as well.

Become a landlord

Temporarily subletting your entire apartment as a furnished apartment for a limited period of time is quite straightforward. Currently, about 20% of the apartments offered on Wunderflats are sublet by the main tenant of the apartment for a limited period of time. Talk to your landlord, explain your reasons for subletting, and get permission before you list your apartment. Inform them as soon as you have found someone as a potential subtenant. This will ensure a good relationship between you and your landlord.

Do you have more questions about subletting or would you like to find a subtenant? Our team will be happy to help you: Contact us at realestate@wunderflats.com or create a listing

 

Please note: The contents of this page have been prepared for your information and the law firm Heuking Kühn Lüer Wojtek has been commissioned to check the legal correctness of the German version of this article. However, this posting does not replace legal advice. For legal advice in your specific case, please contact a law firm. With more than 400 lawyers, tax advisors and notaries at eight locations in Germany, the law firm Heuking Kühn Lüer Wojtek can quickly help you. Contact Dr. Marcus Georg Tischler, our Wunderflats contact person on site. He will connect you with the appropriate expert in the law firm who will take care of your individual concern when you submit a request.

Person to contact
Dr. Marcus Georg Tischler

 

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