Federal Court of Justice, 08.01.2014, Ref.: VIII ZR 210/13
A subletting relationship exists if a tenant allows third parties to use the flat or an area of the flat for a fee. However, the tenant requires the landlord's permission to do so in accordance with Section 540 (1) BGB.
Subletting without the landlord's permission constitutes a breach of contract which, following a warning, can lead to an action for injunctive relief under Section 541 BGB or termination without notice.
The landlord's permission to sublet can be granted generally or in relation to a specific person. In the case of general subletting permission, the tenant can determine the person and the time frame at their own discretion.
The specific use covered by a general subletting licence must be determined by interpretation in each individual case.
In the above-mentioned judgement of the Federal Court of Justice, it had to decide whether the permission to sublet also included letting to tourists on a daily basis.
Facts of the Case:
The defendant rented a two-room flat in Berlin from 1 March 2003. The plaintiffs entered into the contract as landlords in 2011.
Tenant had received permission to sublet from the landlord
In 2008, the defendant asked the then landlady for permission to sublet the flat because he only used the flat every fortnight or so at weekends to visit his daughter and therefore wanted to sublet the flat temporarily.
The landlord then granted subletting permission on the condition that the tenant would grant the subtenant a power of attorney to receive the mail.
Finally, the tenant offered the flat for short-term letting on the Internet
In May 2011, the defendant offered the flat on the internet for daily rental by up to four holiday guests. The plaintiffs objected to such use as being in breach of contract and warned the defendant, threatening to terminate the contract.
However, the defendant was of the opinion that letting to Berlin tourists was also covered by the subletting licence granted.
The plaintiffs then informed the defendant that the letting of the flat to day guests was a commercial activity that was not covered by the subletting licence granted.
Landlord terminated the tenancy without notice and in due time
After the unsuccessful reminder, the plaintiffs terminated the tenancy without notice and alternatively with notice.
The local court first seised granted the action for eviction and the regional court dismissed it, amending the judgement of the court of first instance. With the appeal allowed by the court of appeal, the plaintiffs are seeking the restoration of the judgement of the local court.
Federal Court of Justice ruling
The plaintiffs have now been successful in their appeal to the Federal Court of Justice. The Federal Court of Justice overturned the judgement of the Regional Court and referred the case back for further clarification.
BGH considered termination to be effective - no authorisation for short-term letting
Like the local court, the Federal Supreme Court was of the opinion that the cancellation was effective. According to the Federal Court of Justice, the defendant was not authorised to rent the flat to tourists on a daily basis.
The interpretation of the subletting authorisation granted to the defendant by the Court of Appeal was influenced by errors of law.
Thus, the Regional Court had disregarded essential circumstances in its assessment and had wrongly assumed that, according to the circumstances, a short-term subletting to changing holiday guests could be considered and that such a type of use was therefore covered by the authorisation.
A subletting of living space usually takes place in such a way that the tenant lets the flat or part of it to a third party for an indefinite period or for a limited period (in months or years) with the landlord's authorisation, at least for a certain period of time.
Letting to tourists on a daily basis is not subletting within the meaning of the authorisation
The way in which the flat is made available to tourists, as can be seen from the defendant's adverts, is fundamentally different from this.
Just because the defendant needed the flat himself on two weekends a month, it was not obvious that only letting it to holiday guests could be considered and was therefore tacitly covered by the licence.
In the absence of express permission to make the property available to tourists, the defendant could therefore not assume that the permission granted to him covered such unusual use.
In addition, the former landlord had demanded when granting the subletting licence that the defendant should grant the subtenants power of attorney for all declarations of intent by the property management in connection with the tenancy.
From this alone, the defendant was able to recognise that the licence did not relate to letting to tourists, who were obviously unable to perform such a function.
Source: Federal Court of Justice
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