Tenants Right to Demand Permission for Subrenting

Read about what is necessary to be able to demand permission to subrent your apartment from your landlord.

Mr. Bond was hardly living in his 3 room apartment in Berlin that his boss ordered him to work more in Munich. He requested from his proprietor to sublet two rooms of his apartment to the decent lady Ms. Black. His property owner refused and so did the first two instances in court. The third and last instance, the BGH (re VIII ZR 4/05 of November 23, 2005), decided that Mr. Bond has the right to sublet - against the opinion of his landlord.

The lower instances argued, just as the landlord, that Mr. Bond may not demand permission to sublet because he did not have the focus of his life in the apartment rented out. To the opinion of the Federal Court of Justice, §553 I BGB does not require the tenant to be mainly living in that apartment. The wording of that section does not demand such restriction. §553 BGB gives the private tenant the right to subrent if he has a legitimate interest. The prerequisite is that after closing of the rental contract, the tenant has obtained a legitimate interest in subrenting. In spite of a legitimate reason, Mr. Bond would not have grounds to expect permission to renting the apartment out to another person if there is an important reason in his suggested candidate or sublet cannot be expected from the owner for other reasons.

An "important reason" would be if the flat is excessively inhabited (like 1 person per square meter). The Federal Court of Justice pointed out that a legitimate interest does not already fail if the tenant does not have his focus of life in that apartment. Ratio legis does not demand that he wants to live with that person. Such understanding is necessary to meet the flexibility and mobility of modern life, which was intended to be addressed by the law. Legitimate is such interest that meets a highly personal interest of the tenant and is square with the law and social order. Mr. Bond being mainly in Munich for professional reasons but still having ties to Berlin has an important and legitimate reason to subrent the flat to Ms. Black. Since there is nothing to complain about Ms. Black, there are no grounds for not accepting her as subtenant.

Published on the old CMS: 2006/12/21
Read on the old CMS till November 2008: 120 reads