Can your landlord charge you for subletting

What you as a landlord need to know about subletting

In daily rental practice, it happens again and again that the tenant approaches his landlord with the request to conclude a sublease agreement.

The reasons for this usually lie in the personal sphere of the tenant. Often there are financial reasons that motivate him to take on a subtenant. But family reasons (e.g. taking care of a relative) are not uncommon in practice.

As a landlord, you should be prepared for such inquiries and be familiar with the legal situation. The first question is whether you have to consent to subletting at all. Even if your tenant has taken in a subtenant without your permission, you need to know the conditions under which you have to subsequently approve this unauthorized subletting.

The question of when you can ask the subtenant to vacate the apartment is also important.

Ultimately, it also depends on whether you can demand a higher rent in connection with the subletting.

It is clear that sub-tenants can entail increased economic risk for you:

While you were able to proceed calmly when selecting the main tenant and in particular checked his personal and financial background, this is only possible to a limited extent in the case of a sub-tenant. In this context, the question arises as to what damage the subtenant is liable for. This question is particularly important if your main tenant does not pay the rent. Can you then stick to the sub-tenant in this respect? Even if the main tenancy has ended and the subtenant does not want to vacate the apartment, the question arises whether you have direct claims against the subtenant in this respect.

All of these questions show that there are a number of legal and economic issues associated with subletting. You can find out what you have to pay attention to in this article.

When is there a sublease?

When one speaks of subletting, this always means the case that your tenant leaves the entire apartment or individual rooms to a third party (sub-tenant) for independent use.

A second rental agreement (the so-called sublease agreement) is legally concluded between your tenant and the subtenant. The special feature is that the lease is only concluded in the relationship between your tenant and the subtenant. This does not create an additional contractual relationship between you and the subtenant.

The following cases can be cited as examples of subletting:

  • Your tenant rents one of his two garages to a third party.

  • There is a guest room in your tenant's apartment, which he sublet to a student.

  • Your tenant would like to take in a work colleague who is temporarily working in the city in his apartment and concludes a sublease agreement with him.

The conditions under which you are obliged to agree to a sublease and in which cases you can make the consent dependent on the existence of certain conditions depend on the extent to which a sublease is to take place.

The legal situation differs depending on whether complete subletting is in question or whether only individual parts of the apartment are to be sublet.

Complete sublet

If your tenant would like to sublet the entire apartment, he will need your permission as the landlord in any case. The granting or non-granting of this permit is important insofar as the tenant has a special right of termination if the requested permit is not granted. He is then authorized to terminate the tenancy with a notice period of 3 months.

Important: This also applies if you have signed a temporary rental agreement with your tenant.

Attention: If you generally refuse your tenant permission to sublet, the tenant can make use of his special right of termination without having to make a specific sublet suggestion.

On the other hand, your tenant is not entitled to a general permission to sublet. If you rightly refuse this, the tenant cannot exercise his special right of termination.

The following case is equivalent to this:

The tenant asks for general permission to sublet without naming a specific subtenant. He sets the landlord a reasonable deadline for this. If the landlord does not react to this, the tenant also has no special right of termination.

Important: The tenant's special right of termination cannot be changed to the detriment of the tenant by deviating regulations in the rental agreement.

Partial subletting

In practice, those cases in which the tenant only wants to let a subtenant part of the living space are far more common. This is mostly about cases in which the tenant would like to take in individual people in his apartment on a permanent basis.

However, the legal situation in the case of partial subletting differs from the situation just described for the complete transfer of the apartment to third parties. If your tenant only wants to give parts of the apartment to a subtenant, the following applies:

If the tenant has a legitimate interest in partial subletting after the lease has been concluded, he can request your permission to do so. In other words: If the tenant can prove a legitimate interest, you are obliged to grant permission to sublet.

Exception: However, this obligation does not apply if there is an important reason in the person of the subtenant, or if you cannot be expected to sublet for other reasons.

In practice, it therefore depends on the cases in which there is a “legitimate interest” on the part of the tenant. It is also important to know when there is an “important reason” that entitles you to refuse permission to sublet.

For the “legitimate interest” of the tenant, you need to know the following:

  • A “legitimate interest” exists if plausible economic and personal reasons can be proven.

This is the case, for example, when the number of people living in the apartment has decreased. Even if the income situation of the tenant (s) develops differently than expected (e.g. loss of the job of a tenant), a legitimate interest can be assumed. The same applies if the tenant's economic circumstances have deteriorated significantly for other reasons. This can be assumed, for example, if the tenant is obliged for family reasons to provide substantial maintenance for the care of relatives.

  • If the tenant wants to take siblings into the apartment, he must prove a legitimate interest. The same applies to the tenant's brother-in-law.

  • In any case, the apartment must remain the center of the tenant's life. If your tenant only "visits" the apartment occasionally, there is no longer any partial subletting.

  • The question of whether the admission of the tenant's parents is a subletting subject to approval or not depends on the specific circumstances of the individual case. The actual living conditions will be particularly important here. When it comes to subletting part of a 4-room apartment, a different decision will have to be made than in the case of a single-family house with a loft.

Important: If there is a legitimate interest recognized by law, the tenant can request the landlord's consent to subletting. However, he must name a specific subtenant for this. In particular, the tenant is not entitled to a person-independent permit. For this reason, if there is a legitimate interest, you as the landlord are not obliged to comply with your tenant's request for consent to general subletting.

Important: Since the tenant is entitled to freely dispose of his lifestyle, he does not need your consent in exceptional cases when accepting certain people who are close to him.

This applies to the cases in which he would like to take the following people into his apartment permanently:

  • Spouse

  • minor children

  • Foster children

  • Relatives who are family members

  • Domestic servants

  • Caregivers

It is important to know in this context that the mere wish of the tenant to derive economic advantages from the subletting is not sufficient for the entitlement to a sublet permit.

Example: Your tenant's wish to sublet his apartment during a longer vacation is not enough to be able to request a permit. Exchanging homes with other people during the holiday period is also not permitted.

The situation is different if your tenant leaves the apartment to a friend to look after during a temporary absence. In this respect, it is still within the scope of the contractual use of the rental apartment.

In which cases you can refuse your consent

You can refuse permission for the transfer of use to a third party if there is an important reason for the person of the third party.

There must always be circumstances that make it unreasonable for you to sublet to the person concerned. It is recognized that such a reason does not exist if the person to be admitted wants to establish a flat-sharing community with your tenant.

The situation is different if the admission of the persons concerned would lead to overcrowding of the apartment. In this case you can refuse your consent.

In practice, the following additional reasons are recognized that entitle you to refuse the permit:

  • Personal hostility of the third party to be admitted to the landlord or other tenants in the house.

  • Example: The third party to be admitted has been convicted of a libel offense against the landlord.

  • The leasing would lead to a use of the rented property, which is no longer covered by the contract.

  • Example: The sub-tenant would like to run an office in the living space to be given to him.

  • The transfer would lead to a complete change in the purpose of the contract.

  • Example: The sub-tenant would like to run a veterinary practice instead of the physiotherapy practice previously operated there.

  • Overcrowding of the rented apartment

  • Example: A 3-room apartment is already fully occupied by 2 adults and 3 children. Taking in a subtenant would lead to overcrowding.

Irrelevant: creditworthiness of the subtenant

When assessing whether there is an important reason in the person of the third party, it does not depend on whether the third party is able to pay the rent agreed with the tenant.

This aspect is irrelevant because the obligation to pay is justified in the relationship between the subtenant and the tenant.

In particular, a sublease does not create any obligation to pay the subtenant directly to you as the landlord. Rather, your tenant is obliged to make the rent payments agreed with you regardless of whether or not he receives the agreed rent from the subtenant.

You have these rights in the event of unauthorized subletting

If your tenant sublet parts of the apartment without the required consent, you are normally entitled to terminate the lease without notice. This

applies in any case if the tenant does not have the right to be granted permission to sublet. In such cases, you must first check whether you would have been obliged to issue a permit if the tenant had asked you to do so. If this is not the case, the rental contract can be terminated without notice.

Please note, however, that termination without notice must always be preceded by a warning. This means that you must first ask your tenant to terminate the sublease immediately. In the event that this does not happen within a reasonable period, you also announce the termination without notice.

If the tenant has received a warning, he must do everything possible to end the sublease. So he not only has to terminate the lease, but also bring an eviction action if necessary.

Important: In practice, it is often overlooked that the tenant can claim during the termination procedure that he should have been given permission to sublet. So if the tenant just forgot to get your approval, but would have been entitled to such approval based on the circumstances, your immediate termination is inadmissible and your eviction action will be dismissed accordingly.

For this reason, before giving notice of termination without notice, you should check carefully, if necessary with the assistance of a lawyer, whether your tenant can assert a legitimate interest in subletting.

In this respect, in order to prepare this decision, it is absolutely necessary to request information from the tenant about those circumstances which could represent a legitimate reason. The same applies to information about the person of the subtenant.

Note: If, after carefully examining these circumstances, you still have doubts as to whether you are obliged to grant permission to sublet, it may be advisable to refrain from giving notice without notice.

In this context, however, bear in mind that an ordinary termination in compliance with the statutory notice period is possible. In the context of ordinary termination, other standards apply with regard to the breach of duty by the tenant due to failure to obtain your consent than in the case of termination without notice. In this respect, too, prior clarification of the specific facts and obtaining expert advice is recommended.

Legal relationships between landlord, main tenant and sub-tenant

If there is a sublease, the following applies to the legal relationship between the persons involved:

The tenancy between you and your tenant is fundamentally unchanged. Your consent to sublease only expands your tenant's options for use. The actual sublease contract is concluded - as already shown - in the relationship between your tenant and the subtenant. As the landlord, you do not have your own contractual relationship with the subtenant.

For this reason - and this is important for you as a landlord - the sub-tenancy, for example, does not automatically end when the main tenancy between you and your tenant is terminated. The legal relationships from the sublease agreement between your tenant and the subtenant result from the sublease agreement concluded between these two parties.

When can you request the evacuation of the sublet parts of the apartment?

Since the termination of the lease with your tenant does not automatically lead to the termination of the sublease, there is also no direct claim to surrender in relation to the sublease. In order to obtain such a claim, the following requirements must be met:

  1. 1. There must be an effective rental agreement between you and your tenant.

  2. It must have been made available for use to the subtenant.

  3. The tenancy with your tenant must be effectively terminated and your tenant must be obliged to vacate the apartment.

  4. You must have asked the lodger to vacate.

Important: If a longer period of notice applies to the sub-tenancy than to the tenancy between you and your tenant, this does not conflict with the right to surrender.

In such a case, the sub-tenant must be directed to demand compensation from his landlord (i.e. your tenant).

Tip: With this in mind, you should definitely ask the subtenant to vacate the rented rooms in good time. In this way you ensure that your surrender claim is due. This is particularly important because the subtenant usually does not know the exact content of the rental agreement between you and your tenant. For this reason, he cannot know when the tenancy between your tenant (i.e. his landlord) and you will end.

Compensation from the sub-tenant if they are not vacated on time?

A common mistake in practice is to demand compensation from the subtenant if the rented space is not vacated on time. To do this, you need to know the following:

Since there are no direct contractual relationships between you and the subtenant, contractual claims for damages in this relationship are also ruled out. If you still suffer damage, you have to stick to your tenant in this regard.He is liable to you for any damage you suffer because his subtenant does not vacate the apartment on time.

How to behave if you do not vacate the apartment on time

In practice, it is not uncommon for the landlord to consent to subletting. If you then later terminate the lease and your tenant does not vacate the apartment, you should definitely remember to bring the eviction action not only against your tenant, but also against his sub-tenant.

In this context, it is important for you to know that the subtenant cannot provide you with the protection against dismissal that results from his sublease agreement with your tenant.

Protection against dismissal only applies to your tenant in relation to you. If your tenant has agreed longer notice periods with his sub-tenant than apply to the relationship between you and the tenant, it may happen that your tenant is liable to pay compensation to the sub-tenant. This can be the case in particular if the subtenant has to vacate the sublet rooms earlier than was contractually agreed with the tenant.

The following also applies here: Claims by the subtenant can only be directed against the tenant; As a landlord, you have no direct contractual claims with the subtenant and vice versa.

When is an apartment "cleared"?

The tenant is not entitled to partially return the apartment, especially at the end of tenancies in which you have consented to subletting. Under no circumstances can he claim to only vacate the rooms he has used himself while the subtenant continues to live in “his” sublet rooms.

Example: You have given notice to your tenant and also indicated to the subtenant that the entire apartment should be vacated by November 30, 2002. Both your tenant and his subtenant move out on time. However, the subtenant leaves furnishings and electrical appliances in his room. In such a case, the apartment has not been properly vacated.

Consequence: Since the apartment has not been completely vacated, your tenant is still obliged to pay rent or compensation for use. Something else applies if your tenant leaves behind individual items of low value. This applies, for example, to small amounts of junk or other worthless items.

In individual cases, the definition of whether the items left behind are sufficient to withhold the rent from you or not depends on the specific circumstances. In this respect, it is helpful if you use the costs that have to be taken into account when disposing of the objects from the apartment.

Claims against the subtenant

If your tenant has sublet the apartment left to him, then you, as the landlord, also have a right to reclaim from the subtenant upon termination of the rental agreement with your tenant. In this respect, it does not matter that you have no direct contractual ties with the subtenant. The right to surrender exists against both your tenant and his sub-tenant.

For this reason, you should always remember to assert your claim for repayment against the subtenant. Normally, they have no knowledge of the notice periods agreed between you and your tenant.

Please note, however, that in a number of exceptional cases the assertion of the claim for repayment with the subtenant is excluded. The individual cases are as follows:

  • The sub-tenant is not obliged to return your rented apartment if, after the end of the rental agreement with your tenant, he can plead that a rental relationship has arisen between him and you.

Example: You have agreed with your tenant that after the termination of the rental agreement, the subtenant should assume the rights and obligations of the tenant.

Important: In this case, the subtenant can invoke both the dismissal protection regulations and the social clause.

  • The same applies if your tenant has acted as a commercial sub-lessor. If the tenancy ends in this case, you immediately enter into the tenancy with the subtenant.

  • Example: You do not want to take care of the rental and management of your condominium and for this reason turn on a rental company, which sublet your apartment to another person in their own name and for their own account. If the contract between you and the commercial intermediate tenant is terminated, you enter directly into the rental agreement that was concluded between the commercial intermediate tenant and the tenant.

  • Even if your tenant has rented the entire apartment to his sub-tenant with your consent, he or she has the same legal rights (protection against dismissal, social clause) as any other tenant.

When you can ask for a rent increase

In certain cases, you can make your permission to sublet conditional on the tenant agreeing to a rent increase (sublease surcharge). According to the legal regulation, this is the case if you can only be expected to provide the rental with a reasonable increase in the rent.

Since the amount of this surcharge is not regulated by law, you should come to an agreement with your tenant.

However, the intention of the legislature is to compensate you for the additional wear and tear on the apartment.

In this respect, the difficult question arises in practice of how this amount is to be determined in concrete terms. This question plays a subordinate role, especially if you have agreed on a net rent without any heating.

On the other hand, the situation is different with a warm tenancy: Here, the additional operating and heating costs caused by the subtenant would fully affect you.

Important: As a landlord, you are not entitled to the surrender of the sublease, which is paid by the subtenant to your tenant.

Checklist: You should check these points before granting permission to sublet.

  • Is the tenant ready to give you details about the potential sub-tenant? Would you also accept the subtenant as a tenant from a credit point of view?

  • Is it a full sublease or a partial sublease?

  • In the case of complete subletting: think of the tenant's special right of termination, in the event of a general refusal of the subletting permit.

  • Partial subletting: does the tenant have a legitimate interest? If so, is there an important reason in the person of the subtenant that makes subletting unreasonable for you?

  • Have you thought about charging a sublease surcharge?

  • Have you thought about adapting / changing accounting keys for operating costs (e.g. changing the distribution of garbage fees from the number of apartments to the number of residents)?

  • Have you checked whether the intended use of the subtenant is within the scope of the use agreed with your tenant in the rental agreement (e.g. exclusive use for residential purposes?)

  • Additional check if the rented apartment is a condominium: Is the purpose of use within the scope of the purpose of use specified in the declaration of division or the community regulations?

  • Before granting permission to sublet, did you ensure that the subtenant is familiar with the house rules and that he has made a binding commitment to comply with these house rules in relation to his landlord (i.e. your tenant)? The same applies to regulations on clearing and littering and any other usage regulations (e.g. sauna, swimming pool or fitness room).

  • If you have agreed a temporary lease with your tenant: Is it ensured that the sublease also ends at the time the main lease terminates?

A "real estate advisor" contribution by Dr. Peter's heart. He works as a lawyer in industry. At the same time, he works as a specialist author on topics from construction, real estate and tenancy law, among other things.

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