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Subletting your apartment – Sublease agreement Germany

Especially when there is only one main tenant in a flatshare community, the use of sublease agreement or sublease contract for all other (sub) tenants is inevitable. However, sometimes the opposite is the case and the landlord insists on including everyone, who is moving in, in the lease agreement as a main tenant – in that case no sublease agreements are required.

So whenever a tenant decides to rent out the flat as a whole or parts of it to third parties, a sublease agreement needs to be signed with the subtenant(s).

Permission for sublease

In order to sublease, permission needs to be granted by the landlord. At this point, a general sublease permit is to be differentiated from an individual sublease permit. The latter is personalized and needs to be updated whenever a new sub tenant moves in. Moreover, there is a legal difference in renting out the whole flat or only parts of it. If it is only a partial sublease, e.g. renting out one room in order to create a flat share, the landlord must not refuse permission for sublease, when there is legitimate interest in subleasing after the main lease agreement was signed. Legitimate interest can be of personal as well as economic cause, such as:

  • A change in the main tenants income situation, where the sublease would lead to a financial relief.
  • One has entered the lease agreement with another main tenant, who is now moving out. Especially for students, this situation leads to the fact that the main tenant alone is not able to afford the rent payments and has thus a legitimate interest in subleasing parts of it.
  • The main tenant wants his or her partner to move in.
  • The main tenant does not want to live alone in the flat anymore.

 

The permit can be refused, if

  • there is reasonable cause that the potential sub tenant might harm the domestic peace or damage the rental object.
  • subleasing would lead to overcrowding the flat.

If the main tenant does not try to obtain the permission for the sublease, he can be made liable. Moreover, this poses a cause for an exceptional termination of the lease agreement.

In case of legal disputes, the main tenant is obliged to prove that a permission for sublease was being granted. Hence, instead of relying on an oral permission from your landlord, you should always get the sublease permit in writing.

Liability

When subleasing, the main tenant is still the only party in the main lease agreement. In other words, this means that the main tenant is fully liable towards the landlord and can also be made liable for the subtenants’ actions within the flat, such as negligent and intended property damage, harming the domestic peace or other breaches of the contract. The main tenant is even reliable for covering the sub tenant’s share of the rent if he refuses to pay.

Additional fees for subleasing

In some cases, the landlord has the right to demand additional fees when the main tenant subleases the flat, which leads to an increased lease payment. However, this is only allowed, when the landlord can only undertake granting the sublease with an appropriate increase in lease payment, e.g. when there is a lump- sum agreement for overhead costs and an additional person will inevitably lead to higher overhead costs. If there is no such cause, the main tenant is not obliged to pay the additional fees and the landlord must not make the sublease permit dependent on receiving the additional fees.

 

It is generally true that:

As a landlord towards your sub tenant, you as the main tenant have the same rights and obligations as your landlord has towards you.

 

Further helpful information can be found on the following websites:

http://www.mieterverband.ch/fileadmin/alle/Dokumente/Broschueren/brosch_f_mitglieder/form_f_mitgl_untermietvertrag.pdf

 

An exemplary contract for a sublease agreement can be found here:

Untermietvertrag für eine WG (Word Dokument)

Untermietvertrag für eine WG (PDF)

 

Sources:

http://www.ivmieterschutz.de/mietrecht/mietvertrag/untermieter/

http://www.mieterbund.de/2958.html

http://www.mhmhamburg.de/Untermiete/seiten–1170793215/sub.html

http://www.immobilienscout24.de/umzug/mietrecht/mietvertrag-und-kuendigung/untermietvertrag.html

 

 

 

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