When does the landlord have to agree to a sublease?
In general, tenants must always ask the landlord for permission to sublet. If, after the conclusion of the rental agreement, the tenant has a legitimate interest in letting a third party use part of the living space, he can request permission from the landlord to do so. However, there is not always a right to the landlord’s consent. Tenants are not entitled to allow a third party to use the leased property, in particular to sublet it, without the lessor’s permission. This is regulated in § 540 paragraph 1 of the German Civil Code (BGB). The landlord initially has a legitimate interest in ensuring that only those people live in the apartment who are also listed in the rental agreement. Because the landlord chose them as his contractual partners – and no others. Tenants are therefore strongly discouraged from “secretly” “permanently” letting people into the rented apartment, as well as from temporary subletting. In the worst case, they risk terminating the tenancy – the basis for this is provided by § 543 Paragraph 2 Number 2 BGB. Right to transfer of use to third parties However, if the tenant has a legitimate interest in letting a third party use part of the living space after the conclusion of the rental agreement, he can request permission from the landlord (§ 553 BGB). This legitimate interest can be, for example, generating income from subletting in order to pay the rent if the tenant temporarily lives elsewhere. There is not always an entitlement to a transfer permit Section 553 of the German Civil Code also provides exceptions: If there is a valid reason for refusal in the person of the third party, if the living space is excessively occupied or if the landlord cannot be expected to allow the rental for other reasons, the landlord does not have to agree. But the time when the legitimate interest arose on the part of the tenant is also important. The Berlin Regional Court dealt with this in its judgment of June 30, 2022 (67 S 35/22). The court had to decide whether a tenant can also demand that the landlord allow parts of the rented apartment to be used if there was a possible interest before the rental agreement was signed – in this case a multi-year assignment abroad.
Source: Haus & Grund