Tenants have no right to to be able to sublet their apartment at a profit. The Federal Court of Justice (BGH) decided this on Wednesday and thus clarified a fundamental question.
In this specific case it was a two-room apartment in Berlin-Charlottenburg. The tenant had lived there since 2009. When the tenant went to North and South America for a year in 2020, he asked the landlord for permission to sublet and received this permission. Because of the corona pandemic, the tenant stayed abroad longer than planned and again asked for permission to sublet. This time the landlady did not react; the tenant saw this as tacit acquiescence.
In 2022 there was a dispute. The landlord accused the tenant of subletting without permission and terminated the tenancy. Only now did it emerge that the tenant, who paid 460 euros a month in rent for 65 square meters of living space, was demanding 962 euros from his subtenantsalmost twice as much.
The landlord also based the termination on the argument that she certainly would not have approved subletting to make a profit and did not have to approve it. The tenant tried to justify the high subrent by saying that he… I also left his high-quality furniture, dishwasher and washing machine as well as two bicycles to subtenants.
Gain no legitimate interest
In September 2023, the Berlin Regional Court ruled in favor of the landlord and the tenant had to move out. The tenant, however, appealed to the Federal Court of Justice, which now had to make a fundamental decision.
Subtenants must also be protected from excessive rents
Ralph Bünger, presiding BGH judge
According to the law, a tenant can request permission from the landlord to sublet if he or she has a “legitimate interest” (Paragraph 553 of the Civil Code).
The BGH has now decided that it is not a legitimate interest of the tenant to make a profit from subletting. The BGH had looked through the legislative history since 1900 and came to the conclusion that subletting was always just about keeping the apartment for the tenant if he was temporarily absent or a family member moved out. It was never about giving the tenant their own business model. The subtenants also need to be protected from excessive rents, said the presiding BGH judge Ralph Bünger.
In the Berlin case, the tenant would not have been entitled to approval for subletting at 962 euros. That’s why the landlady was allowed to give notice and the now 43-year-old tenant, who lives back in Germany, has to move out.
Details remain unclear
A fundamental question has been clarified, but many details have not yet been decided. For example, the BGH left it open as to whether a tenant must adhere to the rent cap when subletting, i.e. whether he can charge a maximum of 10 percent above the local comparative rent. The Berlin Regional Court had also based the justification of the termination on the fact that according to the Rent control the rent should have been a maximum of 748 euros. The rent control is particularly relevant if the landlord approves an excessive sublease.
The BGH also left it open whether the tenant can demand more when subletting than he pays himself – if he leaves furniture and other furnishings to the subtenant. The regional court found that a furniture surcharge of around 200 euros would have been disproportionately high in this specific case. In a current draft law, Justice Minister Stefanie Hubig (SPD) proposes that the furniture surcharge for furnished apartments be set at a flat rate of 5 percent of the rent. With a rent of 460 euros, that would be a 23 euro surcharge for the furniture.
The BGH ultimately left it open as to how the landlord even found out about the amount of the sublease. BGH judge Bünger did not mention the landlord’s right to information.