The sublease - what you need to consider
If tenants wish to sublet part of the property they live in, they must obtain the landlord’s permission. Whether the landlord actually has to agree to the subletting depends on various aspects. However, if the subletting takes place without the landlord’s permission, there are a number of legal procedures that the landlord can use to prevent the unauthorized subletting. The question of whether an entire apartment or part of it is to be sublet is also decisive, and the family relationship to the person subletting may also play a role. Reasons for subletting can be of a very different nature, for example for occasional stays at the weekend, during a temporary stay abroad by the main tenant or to compensate for a job-related move for a certain period of time.
Legal classification of the sublease agreement
In principle, a tenant has the right to sublet an apartment or part of it in some cases. This is the case, for example, if they have a legitimate interest in doing so in accordance with Section 553 of the German Civil Code (BGB), e.g. if they are going abroad and are leaving the apartment to someone else during this time so that they do not have to pay the rent while they are not living in the apartment. However, the landlord must consent to the subletting of living space in accordance with Section 540 BGB. Only when accommodating close family members or care staff is no express permission required. However, the landlord must be informed in all cases. In the case of subletting, the tenant and the subletting party conclude a separate contract. There are numerous templates for this so-called simple subletting agreement, which regulate all the relevant facts for the relationship. The rental agreement between the main tenant and landlord is not affected by this, meaning that the rent must continue to be paid to the landlord on time.
Permission to sublet
The subletting of living space must be approved by the landlord, but the refusal of such permission is only legal if the subletting relationship is unlawful for the landlord in accordance with Section 553 BGB. If permission for subletting is not obtained and subletting nevertheless takes place, you as the landlord can claim damages from the tenant and it is also possible to give extraordinary notice of termination. The notice period for subletting without permission is then three months. This also applies in the case of a temporary tenancy agreement.
Rights of the subtenant
Anyone wishing to sublet an apartment must make certain concessions to the person to whom they are subletting. The subtenant’s rights include the right to have the room or apartment kept in a proper condition in accordance with the contract. If the subletting took place without the landlord’s permission and the landlord demands the return of the rented property, it is possible to assert claims for damages against the main tenant. If there is good cause, the subletting agreement can be terminated without notice. In principle, the notice periods for a subletting agreement are the same as in the rental agreement between the landlord and the main tenant.
Tax treatment of subletting
Wenn jemand eine Wohnung untervermieten möchte, sind auch steuerliche Aspekte von Bedeutung. Prinzipiell zählen auch Einkünfte aus der Untervermietung zu den zu versteuernden Einkünften aus Miete oder Pacht. Dies ist allerdings erst ab einer Freigrenze von 520 Euro pro Jahr erforderlich. Einkünfte aus Untermietverträgen, die unterhalb dieser Grenze liegen, können unbesteuert bleiben. Es ist allerdings darauf zu achten, dass die Angabe in der Steuererklärung sofort erfolgen muss, sobald dieser Betrag um nur einen Euro überschritten wird, denn es handelt sich um eine Freigrenze, nicht um einen Freibetrag. Werden die Einnahmen verschwiegen, kann dies als Steuerhinterziehung ausgelegt werden und alle damit zusammenhängenden Konsequenzen mit sich bringen.
General permission to sublet without the landlord’s consent exists in certain exceptional cases. These include immediate family members who wish to move into an apartment as a subletting party. These are spouses, joint children or parents of the tenant. If subletting to third parties, permission from the landlord is required. However, if the tenant only wishes to sublet a room, consent is required if there is a legitimate interest. This may be for economic or personal reasons, for example, if the tenant wants to cover their costs by subletting a room after a separation. If an entire apartment is to be sublet, there is an option to refuse and withhold consent.
There is no statutory regulation on the amount to be paid in a subletting agreement. The only stipulation is that the amount of rent should be reasonable; beyond this, the amount of rent is subject to contractual freedom. In principle, it is also permissible to sublet at a higher price than the actual main rent. Only in the case of price-controlled housing are there very specific provisions on the amount of the rent, which must then be EUR 2.50 per month per subtenant.
The owner of the property is also considered the landlord when subletting. The landlord regularly receives the rent on time from the tenant, regardless of whether the subtenant in turn assigns the agreed amount to the landlord.
The duration of the relationship if a tenant wishes to sublet an apartment or room can be precisely regulated in a contract between the tenant and the landlord. If general permission to sublet has been granted, the tenant has the right to sublet the accommodation at their own discretion. This means that there is no time limit and even unlimited subletting would be legal in principle.
Like the main tenant, subtenants must register their place of residence with the Residents’ Registration Office or the Citizens’ Registration Office. This must be done within two weeks of moving into the apartment. Not only the rental agreement for the sublet is required for registration, but also a landlord’s certificate. The main tenant uses this to prove that the person subletting has moved in. The certificate must include the name and address of the landlord, the address of the apartment, the name of the person or persons required to register and – if this is not the landlord – the property owner.
