Berlin Regional Court, 27.07.2016, Ref.: 67 S 154/16
If the tenant lets their flat to a third party, this constitutes subletting according to the law. This also applies if the flat is only to be let for a short period of time (for example via the internet portal "airbnb").
However, as such subletting represents a risk for the landlord, a subletting agreement may not be concluded without further ado. The tenant must therefore obtain permission to sublet from the landlord in accordance with Section 540 BGB:
§ Section 540 (1) BGB:
Without the landlord's permission, the tenant is not authorised to allow a third party to use the rented property, in particular to sublet it. If the landlord refuses permission, the tenant may terminate the tenancy for cause with the statutory notice period, unless there is good cause in the person of the third party.
However, this regulation can be regulated differently in the tenancy agreement by agreeing that the tenant has the unrestricted right to sublet. However, as this is very much against the interests of the landlord, such a clause will be found in very few tenancy agreements (in most tenancy agreements, the wording of Section 540 BGB is explicitly repeated).
The provision of Section 553 BGB, in turn, is to be understood as a supplement to Section 540 BGB. It contains an important exception to the rule in Section 540 BGB for residential leases:
§ Section 553 (1) BGB
If, after the tenancy agreement has been concluded, the tenant has a legitimate interest in allowing a third party to use part of the accommodation, the tenant may request the landlord's permission to do so. This does not apply if there is an important reason in the person of the third party, if the living space would be excessively occupied or if the landlord cannot reasonably be expected to grant permission for other reasons. However, the mere prospect of a lucrative source of income for the use of internet platforms such as "Airbnb" does not constitute a legitimate interest.
Such a legitimate interest can exist for the tenant in many respects. However, the tenant's commercial interest in the temporary letting of the flat via the "airbnb" portal is not one of them.
Nevertheless, the landlord cannot simply terminate the tenant's contract after becoming aware of unauthorised subletting, but in most cases must first give the tenant a warning.
In the case discussed here, the tenant had rented out his flat in Berlin three times via the internet portal "airbnb". The landlord found out about this and immediately terminated the tenant's contract.
Background to the case: Letting via Airbnb
This case concerns a dispute between a landlord (plaintiff) and her tenants (defendants) of a flat in Berlin. The defendants had rented the flat to tourists a total of three times via the "Airbnb" platform. When the plaintiff learnt of this, she terminated the tenancy both without notice and, alternatively, with due notice. However, the defendants rejected the cancellation as it was made without prior warning.
As the defendants did not vacate the flat, the plaintiff filed an action for eviction with the local court. The local court ruled in favour of the defendants and dismissed the action as the plaintiff had not been properly warned. The plaintiff then appealed to the Berlin Regional Court.
Berlin Regional Court judgement: eviction action unfounded
The Berlin Regional Court also confirmed the judgement of the Local Court and dismissed the action. The defendants were not obliged to vacate the flat pursuant to Sections 985, 546 (1) BGB. Neither the termination without notice nor the ordinary termination had effectively ended the tenancy. Although unauthorised subletting was an "important reason" for termination in accordance with Section 543 BGB, the plaintiff had not properly warned the defendants, which would have been necessary in accordance with Section 543 (3) BGB.
Warning as a mandatory requirement
According to Section 543 (3) sentence 1 BGB, a warning is required prior to termination unless there are special circumstances that make a warning unnecessary. The Regional Court did not see such an exceptional case. The defendants had deleted their user profile on "Airbnb" immediately after receiving the cancellation notice, so it was not apparent that a warning would not have been successful.
The fact that a booking enquiry was made for the period after the termination could also not be used as a reason for the dispensability of a warning, as this enquiry was made before the termination.
No serious breach of contract without a warning
The court also found that even unauthorised subletting to tourists was not sufficiently serious to justify termination without notice and without prior warning. Although subletting without authorisation is a breach of duty, only the disregard of a warning can give the breach of contract the necessary weight for termination. The case was not serious enough to terminate the tenancy without a warning.
Source: Berlin Regional Court
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