The legal aspects of renting have become complex in Germany. Tenancy law keeps changing. Many landlords/-ladies ask themselves: is temporary furnished renting still allowed at all? The answer is: clearly yes, under certain conditions. Temporary furnished renting, which is residential and not tourist accommodation, is legal.
We have compiled below for you which legal conditions are important for you as a landlord/-lady of furnished temporary rentals.
Please note: Renting for temporary use is referred to in the following as temporary living for the sake of convenience. This is not to be confused with the legislation in connection with temporary rental agreements (fixed term in accordance with § 575 BGB).
- Mietpreisbremse (“rental brake”)
- Misuse
- Rental contracts for temporary housing
- Subletting
- Registration law
- Service charge settlement/heating cost ordinance
- Energy certificate
- Trade law
Mietpreisbremse (“rental brake”)
Basics of the Mietpreisbremse
The Mietpreisbremse (rent control, literally “rental brake”) in Germany was introduced on 01.06.2015 and has been tightened in an amendment to the law as of 01.01.2019. It gives the federal states the option of limiting the amount of rent charged for new rentals of existing apartments: to a maximum of 10% above the local comparable rent.
The rental brake applies to areas with a strained housing market. The individual federal states decide whether a housing market is classified as strained on the basis of the following four indicators for a period of five years: Population growth, vacancy rate, rent development and rent burden.
Mietpreisbremse for you as a landlord of temporary furnished housing: What do you have to consider?
In principle, the Mietpreisbremse (rental brake) applies to furnished apartments as well, provided they are rented out for an unlimited period. Once you rent out your apartment for temporary use, the legal situation changes: Tenant protection regulations that limit the permissible rent amount at the start of the tenancy no longer apply (§ 549 Para. 2 No. 1 BGB).
So for you as a landlord/-lady of a furnished temporary apartment, the Mietpreisbremse (rental brake) does not apply. To cover the costs of furnishing, you can calculate a furnishing surcharge for the rent.
A reasonable furnishing surcharge should reflect the current value of the furniture. Therefore, the two most common methods of calculating the furnishing allowance are based on the age and original value of the furniture. More detailed information on this can be found in our article Calculating the furnishing surcharge: The Hamburg and Berlin model for temporary furnished rentals. Using empirical values from previous Wunderflats bookings as well as internal and external data on rental prices, we are happy to give you an overview of the rental prices of furnished apartments.
Misuse
Principles of misuse
Misuse, also called misappropriation, occurs when living space is used for a purpose other than living, for example by renting it out as a holiday home. A key sign that there is no misuse is the reason for the tenant’s residence: If the tenant temporarily moves his or her main place of residence to another place – for example, for professional reasons – then the living space is used for living and not for accommodation.
In addition, municipalities often prescribe a minimum rental period in their own rules and regulations. If this is adhered to, the stay is classified as lawful housing and not as the use of housing for other purposes. In general, it can be summarised for municipal requirements: The rental period may not be measured in days or weeks and should be more than one month. We at Wunderflats recommend that all landlords/-ladies adhere to the respective municipal guidelines. In our article An overview of the misuse of furnished temporary housing, we have compiled the general regulations on the misuse of furnished temporary housing in Germany.
Misuse for you as a landlord of temporary furnished housing: What do you need to bear in mind?
Wunderflats assists you as a landlord/-lady to comply with the rules of the ban on misuse in Germany. Wunderflats’ offer relates exclusively to the use of residential space for living and not for the accommodation of holiday guests or medical purposes.
In order not to fall into the misuse of living space, you should comply with the following regulations when renting out for a limited period of time:
- Set a minimum rental period for your apartment that complies with the regulations of your municipality: Depending on the city and region, you can get specific information on the regulations from the Housing Office, Building Office, Building Inspectorate or District Office. You can find more information on this topic here. We will be happy to advise you if you are unsure about the minimum rental period for your municipality when creating your listing on Wunderflats.
- Check the reason for the tenant’s residence: Tenants should prove that they are moving their main place of residence to the location of your apartment for a limited period of time. Since the reason for residence must also be stated in the rental agreement, you thus demonstrably rent out the living space for living purposes and not for tourist accommodation. Here, too, you receive support from Wunderflats: Potential tenants must always provide information on the reason for residence.
Of interest to apartment owners in Berlin, Hamburg, and Munich: The district authorities occasionally contact landlords/-ladies to investigate the possible misuse of their apartment when it is rented out for a limited period of time. This is often because tourist accommodation and temporary housing are confused. So far, however, there has never been a case of misuse when renting via Wunderflats.
Rental contracts for temporary housing
Fundamentals of rental contracts for temporary housing
Rental contracts for temporary housing are issued when living space is rented out for a short-term, predictable contract period due to a specific reason for residence. The rental contract to be signed by tenant and landlord/-lady must include both the end of the contract and the specific circumstances of the stay.
Rental contracts for temporary housing for you as a landlord of furnished temporary housing: What do you have to consider?
All rental agreements you conclude through Wunderflats are intended for temporary use – because Wunderflats connects tenants and landlords/-ladies for temporary housing.
As soon as your apartment listing verified by Wunderflats is posted online, you will receive the legally verified template of a rental agreement for temporary housing. You can use this rental agreement for all rentals with Wunderflats.
To rent out an apartment for “temporary housing”, the rental period must be limited from the outset. The key factors are the agreed purpose of the rental property and the tenant’s intention to only use the property for a temporary stay. There is no legally defined minimum or maximum rental period above which a “rental for temporary use” can be assumed or excluded, however the longer the duration of the lease, the more closely the categorisation should be examined. We recommend a closer examination from a rental period of 6 months. For rentals of longer than 12 months, a rental for temporary use can only be assumed in exceptional cases. However, an assessment depends heavily on the individual case and the specific circumstances.
Can rental contracts for temporary housing be terminated?
Rental contracts for temporary housing are concluded for a fixed period of time and end automatically at the end of the agreed term. They can only be terminated for extraordinary reasons.
Reasons for extraordinary termination are those over which the landlord/-lady has direct influence. These include e.g.:
- failure to grant use (no access or late access), as well as
- significant health hazards (mould, heating not working permanently during the winter months, etc.).
If your tenant wants to move out due to a change in circumstances (e.g. project ends prematurely), our teams at Wunderflats will be happy to assist you in drawing up a termination agreement and finding suitable new tenants.
Can fixed-term rental contracts be extended?
When extending rental contracts for temporary use, the end of the extended rental period must be foreseeable. Here, too, you must state the reason for the extension in the contract, otherwise, the contract will be deemed entered into for an indefinite period. A total rental period of one year should not be exceeded by the extension – otherwise, the tenancy could change into one for an indefinite period.
Approximately 20% of Wunderflats tenants would like to extend their contract after the end of their original stay. We ask your tenants in advance whether they would like to extend their rental agreement and whether you agree to this. In this way, Wunderflats can either assist you in drawing up the new contract or find a new tenant for you. In both cases, you avoid vacancies in your apartment.
Is there a right of withdrawal when concluding rental contracts for temporary housing?
The right of withdrawal of § 355 BGB of the German Civil Code applies if you rent out commercially and the tenant is a natural person (i.e. not a company). The right of withdrawal does not apply to private rentals.
The tenant has a right of withdrawal if, for example, the apartment has not been inspected beforehand (§ 312 Para. 4 BGB) or if you persuade the tenant to give his or her consent outside your own business premises – for example, at the door of the apartment or occasionally during an inspection of the apartment (§ 312b BGB). If the general conditions for the right of withdrawal are fulfilled, a withdrawal is valid for 14 days after the conclusion of the contract, provided you have informed the tenant of their rights at the time of entering into the contract. If you have not, the right of withdrawal is extended to one year and 14 days.
In rare cases, the tenant’s plans change after the rental agreement has been signed, so that he or she cannot or does not want to move in after all. By signing the rental agreement for temporary housing on both sides, you as the landlord/-lady are on the safe side and can legally insist on payment of the rent. However, we at Wunderflats are happy to help you with a simpler, alternative solution: We actively look for a new tenant for you at short notice and assist you in agreeing on a termination agreement with the tenant who has left. You prevent vacancies without any effort and help the original tenant avoid an additional financial burden.
Subletting
Subletting basics
The option of subletting is regulated by law in §§ 540, 553 BGB and requires the consent of the landlord/-lady or owner. This means that a tenant must obtain permission from the landlord/-lady in order to rent the apartment to a subtenant. This agreement should always be in writing and may already be part of the main rental agreement.
We have compiled these and other legal regulations that must be followed for a successful subletting in Germany for you here: Subletting – What you need to be aware of.
Subletting for you as a landlord of temporary furnished housing: What do you have to consider?
The Wunderflats standard rental agreement does not allow subletting. Therefore, your tenants are not allowed to sublet your apartment to third parties – otherwise, you can give them immediate notice of termination.
Registration law
Fundamentals of the Registration law
In order for the temporary tenants to be able to register with the registration office (Anmeldung), they need confirmation of residence from you as the landlord/-lady. The confirmation must show the date of moving in and moving out, the name and address of the landlord/-lady, the address of the temporary home and the name of the person required to register.
Registration law for you as a landlord of temporary furnished housing: What do you have to consider?
According to the German Federal Registration Act (Bundesmeldegesetz, BMG), landlords/-ladies are obliged to assist in the official registration of their tenants (Anmeldung) and to issue them with a landlord’s confirmation of residence (aka “proof of residence”, “Wohnungsgeberbescheinigung” or “Mietbescheingung”) (§ 19 BMG). Tenants need this confirmation when registering or changing their residence at the Residents’ Registration Office (Einwohnermeldeamt), the Citizens’ Registration Office (Bürgeramt) or the Citizens’ Office (Bürgerbüro).
Even if your tenants are only staying for a few months, we would like to encourage you to issue them with a landlord’s confirmation of residence in any case. Foreign tenants in particular depend on the registration in order to obtain a tax identification number and open a bank account, for example. Similarly, only after receiving a tax identification number will your tenant be assigned his/her correct tax class.
You can find detailed information on the landlord’s confirmation in our article The confirmation of residence for temporary housing (Wohnungsgeberbestätigung) in Germany.
Service charge settlement / heating cost ordinance
Fundamentals of service charge settlement / heating cost ordinance
It is usually stipulated in rental contracts that the service charges are to be borne by the tenants. According to the heating costs ordinance (Heizkostenverordnung, Heiz KV), heating and hot water charges are to be billed for the most part according to consumption. There are only a few exceptions that entitle tenants to a flat-rate charge for heating and hot water costs.
In some cases, tenants and landlords/-ladies contractually agree that all consumption-dependent service charges such as heating and electricity will be included in the rent as a lump sum.
Service charge settlement/heating cost ordinance for you as a landlord of temporary furnished housing: What do you have to consider?
The Wunderflats standard rental agreement for temporary furnished rentals shows inclusive rents. Both the service charges and the heating and hot water costs are therefore charged at a flat rate. We will be happy to give you an overview of prices on the rental market for furnished housing as soon as you create your listing on Wunderflats.
In contrast to consumption-based billing, you as the landlord/-lady do not have to prepare a service charge statement at the end of the billing period to check whether the tenant’s payments correspond to the consumption incurred. Thus, with a flat-rate bill, no additional payments are made retrospectively by the tenant or landlord/-lady.
According to the experience of our Wunderflats landlords/-ladies, different consumption patterns over several rentings balance each other out well. However, if you notice that the flat rate does not match the costs, you can adjust the flat rate for future rentals accordingly.
If you notice a significantly higher consumption of consumption-based service charges such as electricity or heating, you may be able to withhold an appropriate amount of the deposit until you receive the next service charge statement. For more information on this, see our article The security deposit – All you need to know when renting out furnished.
Energy certificate
Fundamentals of the energy certificate
With the Energy Saving Ordinance (EnEV 2014) of 2014, the energy certificate became mandatory for all owners of residential property in Germany. The original or a copy of the energy certificate must be visibly displayed during an inspection of the apartment (§ 16 Para. 2 EnEV). If no seeing takes place, a copy of the certificate must be handed over to the tenants when they move in at the latest (§ 16 Para. 2 EnEV). Despite tenants rarely demanding this in practice, a violation can be punished as an administrative offence with a fine of up to €15,000.
Energy certificate for you as a landlord of temporary furnished accommodation: What do you have to consider?
As the owner of an apartment, you need only contact your property management company: The energy certificate for the building must be on file there. There are no energy certificates for individual apartments.
As the owner of a single-family house, you can easily have an energy certificate issued. Contact your local Chamber of Architects, Chamber of Engineers, Chamber of Crafts or the Energy Advice Center of your local Consumer Advice Center. For more information, you can also contact the German Energy Agency (Deutsche Energie-Agentur).
When you create your listing on Wunderflats for Germany, you have to state whether you have an energy certificate for your apartment, whether you are currently applying for the certificate or whether your building does not fall under the Energy Saving Ordinance (EnEV 2014).
Trade Law
Fundamentals of trade law
Legally, a distinction is made between Renting as asset management (private) and renting as an economic activity (commercial).
If you rent out apartments as a private person, this is usually private asset management (§ 14 Para. 1 Sentence 3 AO), which does not fall under trade law. Despite popular belief, this is also the case if you have several rental properties and high management overhead due to many tenants.
An indication that your rental is considered an economic activity is your generation of income through rentals that exceed the scope of asset management (§ 14 Para. 1 Sentence 1 AO). However, there is no fixed limit.
If your renting of residential rooms to tenants is organized in a hotel/boarding house-like manner – for example by providing special services such as a permanently manned reception – commercial activity is assumed. In this case, legally, the uniform commercial organization outweighs the simple use of assets.
Trade law for you as a landlord of temporary furnished housing: What do you need to bear in mind?
As soon as you rent out commercially, you must register a trade in Germany. You can find the costs and required documents on the website of your local trade office. As a commercial landlord/-lady, you are automatically subject to the provisions of trade law. This comes with obligations – such as the need to keep accounts.
If you rent out your property commercially, you may be liable for trade tax accrue. If your profit exceeds the tax-free amount, you have to pay this tax: for natural persons and partnerships, this amount is €24,500, and for companies €5,000 per year (§ 11 GewStG).
The lines between private and commercial renting can be blurred. It often depends on the individual case. Therefore, we recommend that you talk to a tax advisor or your trade or tax office and get advice on your individual situation.
Regardless of whether you rent out your apartments privately or commercially – you are in good hands with Wunderflats!
Do you have further questions about temporary furnished rentals or would you like to rent out your furnished apartment on a temporary basis? Our team will be happy to help you: Contact us at realestate@wunderflats.com or create a listing right away.
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.
Contact:
Dr. Marcus Georg Tischler
