Tempelhof-Kreuzberg Local Court, 29/08/2016, Ref.: 7 C 161/15
There are many reasons to look for a subtenant. For example, studying abroad, a change of job or an excessively large or expensive flat. So if you want to return to your favourite flat after a limited period of time and generally don't want to give it up, a subtenancy can make sense.
However, subletting generally requires the landlord's permission in accordance with Section 540 BGB. Such permission can already be agreed in the main tenancy agreement. However, the vast majority of tenancy agreements stipulate that the landlord's permission must be obtained separately for each individual case. However, according to Section 553 (1) BGB, tenants are also entitled to sublet if they have a legitimate interest in doing so.
As a rule, the main tenant must only sublet part of the rented flat and remain in the flat himself. However, it is also sufficient if the main tenant has stored furniture in a room or uses a room occasionally, for example on holiday (BGH, judgement of 11 June 2014, ref. VIII ZR 349/13). The landlord does not have to agree to the entire flat being sublet. However, the tenant no longer has to have their main place of residence in the flat (BGH, judgement of 23 November 2005, case no. VIII ZR 4/05).
In the present case, the subtenant violated the obligation to register with the police, so that the landlord did not allow the subletting. The tenant took legal action against this.
Facts of the Case:
Landlady only wants to allow subtenants if they register properly
The tenant wanted to sublet part of his approximately 185 square metre flat to two other people. The landlord, i.e. the defendant, made permission to sublet dependent on the two people registering with the residents' registration office and providing proof of this registration to the landlord.
Proof of registration was not provided, so the defendant refused to grant permission to sublet. In her opinion, the relationship of trust between her and the plaintiff, i.e. the tenant of this flat, had already been destroyed. The reason for this was that the plaintiff had been misusing the flat as a hostel for tourists for decades, contrary to the defendant's wishes. The plaintiff had given several assurances that he would not sublet the flat commercially.
Tenant also rents out the flat via the airbnb portal
However, the flat on offer was on websites such as "airbnb.com". As a result, the plaintiff rented the flat to tourists at least from 2012 to 2014. The defendant asked the plaintiff to stop subletting to tourists.
Tenant files declaratory action for subletting authorisation
As the tenant did not accept the refusal to grant subletting permission, he brought an action for a declaratory judgement that the defendant had to permit the subletting.
Judgement of the district court Tempelhof-Kreuzberg:
Local court sees no entitlement of the tenant to sublet
The Tempelhof-Kreuzberg District Court, which heard the case, ruled that the action for a declaratory judgement was unfounded, as the plaintiff was not entitled to a subletting permit under Section 553 BGB at the time the action was pending.
In accordance with Section 553 BGB, the tenant may request permission to sublet part of the living space to a third party if a legitimate interest in doing so has arisen after the tenancy agreement has been concluded. However, the landlord is entitled to refuse to grant permission if there is a significant reason in the person of the third party, if the living space is excessively occupied or if the landlord cannot reasonably be expected to grant permission for other reasons. The defendant's refusal of permission was therefore justified.
Failure to register the subletting constitutes an important reason for refusing the subletting
In the present case, the lack of police registration of the subtenant was an important reason for the defendant's refusal. It was even more significant that the defendant's trust in the plaintiff's honesty had already been destroyed due to the rental history and that for this reason it was entitled to set strict standards for potential subtenants. It should be taken into account in this respect that the plaintiff had assured the defendant several times that he had not let the flat to tourists for commercial purposes, but had nevertheless done so.
Source: Tempelhof-Kreuzberg Local Court
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One Response
What if the subtenant is registered at a different address but has been living with the acquaintance for years without a valid ID card? acquaintance without a valid identity card and is not in the rental contract what should she do or what can she have to pay a fine?