Subletting in Germany (Untervermietung) [Sublet Regulations 2024]

Key takeaways

• You can sublet an apartment in Germany after getting written permission from the landlord.
• The income from subletting must be declared in your income tax returns.
• You don’t need permission from the landlord if your spouse or partner moves in with you.
• The landlord cannot refuse you to sublet the apartment without any legitimate reasons.

This is how you do it

• Send a letter to the landlord to request permission to sublet the apartment. You can use our sample letter for this.
• If the landlord refuses, you can sue them and claim damages from the lost rent.
• You should consult a lawyer specialized in tenancy law before taking matters to court.
• You must sign a sublease contract when subletting in Germany. You can use our sublet contract template for this.

Table of Contents

Relationship: Main tenant and Landlord

What is considered subletting an apartment in Germany?

When you, as a tenant, rent out part or all of your rented apartment or house to someone, it is considered subletting (Untervermietung) in Germany. Subleasing is known as “Untermiete” in German.

In a sublet agreement, you (the original tenant) retain the main rental contract. This is why you are referred to as the main tenant.

As a main tenant, you are responsible for any damages to the property and must fix them or pay the landlord.

Who is considered a subtenant as per the German law?

The following people are considered subtenants under German law:

• Your partner: The Federal Court doesn’t consider your unmarried partner as a spouse when moving into a rented property (dated 5 November 2003 – VIII ZR 371/02). Thus, you require the landlord’s permission before moving in with your partner. However, the landlord cannot reject your request. The only situation where the landlord can reject it is if the subletting seems unreasonable. For example, the apartment is overcrowded.
• Distant family members: In Germany, siblings and other relatives are considered subtenants, and you require the landlord’s permission before they start living in the same rented property with you. 
• Anyone who pays you rent: If you allow someone to live in your property and get rent from them, it’s considered subletting.

Who is not considered a subtenant as per the German law?

• Close family members, such as a spouse, children, and parents, are not considered subtenants. Thus, you don’t need the landlord’s permission if they move in to live with you (cf. BayObLG GE 97, 1463).
• Visitors: Someone visiting you for a short or long period (six to eight weeks) is not considered a subtenant. You don’t need the landlord’s permission.

Are you allowed to sublet your rental property in Germany?

Yes, you can sublet your apartment in Germany. However, you need the landlord’s permission in writing.

Suppose your rental agreement already allows subletting. In this case, you don’t need permission (Section 540, Paragraph 1 of the German Civil Code). However, you must still inform the landlord about the sublet.

What can you do if the landlord doesn’t allow subletting the apartment?

Subletting the entire apartment

You need the landlord’s permission to sublet the entire property (§ 540 para. 1 BGB). If the landlord refuses, you cannot sublet.

Subletting part of the apartment

As a tenant, you have the right to sublet part of the rental property if all four conditions are met. If the landlord refuses, you can sue them. You can even demand compensation for the amount of the lost sublease.

• Legitimate interest: If you have a legitimate reason (personal or economic) to sublet the property, the landlord cannot refuse. Here are some of the reasons that the court considers legitimate.
  • Taking in a subtenant after divorce
  • Taking in your sibling who needs housing
  • Accepting a subtenant when the previous subtenant of the existing shared flat leaves.
• Subletting part of the property: You must live in the property you want to sublet. You can, of course, go on business trips or holidays for a few months. However, if you move out for several years, you have no right to sublet.
• The rental contract is concluded: The legitimate interest in subletting must have risen after the rental contract is concluded. So, there should be some time between signing the rental contract and raising a request to sublet. The exact timeline is not defined in law. One month’s gap should usually be enough.
• Subletting is not unreasonable: The landlord can refuse to sublet the apartment if it’s unreasonable, such as if the apartment is overcrowded. 

NOTE: Even if you meet all the conditions, you cannot sublet without the landlord’s permission. If you did, the landlord can terminate your contract by giving a three months’ notice.

Suppose you sublet without permission and breach any of the above conditions. In that case, the landlord can terminate your rental contract without notice due to “unauthorized transfer of use” (Section 543 Para. 2 No. 2 of the German Civil Code).

However, the landlord must give you (the tenant) a written warning before terminating the contract. This allows you to end the sublease and avoid the termination of your rental contract.

NOTE: Before you take matters to the court, you should get legal advice from a lawyer or the tenant’s association. 

Disputes between tenants and landlords are very common in Germany. Thus, getting legal insurance is advisable to cover the legal costs.

How do you sublet in Germany?

• Request permission to sublet in writing from your landlord. You must state the name, address, and age of the subtenant in your letter. You don’t have to provide the subtenant’s income details to the landlord, as the financial risks are yours. You can use our sample letter to request permission to sublet.
• Get the subletting permission from the landlord in writing. This way, you have written proof.
• Draft a sublet agreement. You can use our sample sublet contract.
• Ensure that a security deposit (Kaution) is obtained from the subtenant. As a main tenant, you are responsible for any damages caused by the subtenant to the property (§ 540 para. 2 BGB).

NOTE: Most of the tenant’s association (Mieterverien) only covers the disputes between the main tenant and the landlord. They don’t cover the disputes between the the main tenant and the subtenant.

Things to keep in mind when requesting subletting permission from the landlord

• Mention a clear deadline in your letter to the landlord.
• Mention that you have the right to claim damages for the lost sublease (optional).
• Get confirmation in writing from the potential subtenant that they would have rented part of the property if the landlord had granted permission. Clearly mention the sublease start date, rent, and duration. This will act as proof when claiming damages.
• The subtenant should not move into the apartment until the landlord has given written permission.

The landlord can increase the rent if you sublet the property (subletting surcharge)

If subletting is permitted, landlords can increase the rent (Section 553, Paragraph 2 of the German Civil Code). However, the main tenant must agree to this. 

Suppose you (the main tenant) disagree with the rent increase. In this case, you cannot sublet. Here is how much rent the landlord is allowed to increase.

• Up to 20 percent of the sublet rent or
• Up to 10 percent of the net rent

The landlord can also increase the advance payment of utility costs. This is because, with more people living in the property, water, electricity, and heating consumption will increase.

Relationship: Main tenant and Subtenant

What rights do subtenants have in Germany?

Subletting the entire apartment

When subletting the entire apartment, the normal notice period (3 months) applies (Section 573 c of the German Civil Code (BGB)). In addition, the main tenant must prove a “legitimate interest” when terminating the sublease agreement.

Subletting part of the apartment

• No sublease agreement: Suppose no sublease agreement has been signed. The main tenant can ask the sub-tenant to vacate the apartment immediately (§§ 605, 723, 812 BGB). Thus, it’s vital for you as a subtenant to sign a sublet contract.
• Sublease contract and notice period: If part of the property is rented, the main tenant can terminate the sublease contract without having to prove any legitimate reason. However, the main tenant must give a notice period before terminating the sublease contract.
• Furnished apartment: Suppose the subtenant lives in a furnished room in the main tenant’s apartment. In this case, the main tenant can terminate the sublet contract without reason by the 15th of each month for the end of that month (§ 573 c Paragraph 3 BGB).

Things to consider when signing the sublease contract

It’s recommended for both the main tenant and the subtenant to sign a written sublet contract. Never rely on verbal agreements.

A sublease agreement should contain the following:

• Names of the contracting parties
• Property address
• Rent and additional costs
• Rental deposit (Kaution)
• Refer to the main rental contract for cosmetic repairs, house rules, etc.
• Sublet duration
• Notice periods
• Signatures of both contracting parties

As the main tenant, you are liable to your landlord for any damage resulting from the sublease. 

The following also applies to written sublease agreements: If nothing specific has been agreed on cosmetic repairs or additional costs, the subtenant does not have to pay for them.

Thus, you (the main tenant) should use standard rental contracts for sublease agreements. You can also use our sublease contract template.

How much rent can the main tenant ask for subletting?

In a sublease, the main tenant can determine the rent regardless of how much rent they pay the landlord. However, you (the main tenant) must adhere to the applicable rent cap when subletting.

What can you do if the subtenant refuses to vacate the apartment?

Your rights as a landlord

Once the tenancy lease with the main tenant ends, the subtenant must also vacate the property at the same time. Suppose the subtenant refuses to vacate; the landlord has the following options.

• Write a written request to the subtenant to vacate the property.
• If this doesn’t work, you can file an eviction suit against the main tenant and subtenant.
• You can also claim damages for the lost rent for the time you are unable to rent the property.

NOTE: As a landlord, you can sue either the tenant, the subtenant, or both. It’s advisable that you file an eviction notice against both the main tenant and subtenant.

Even if the main tenant vacated the property on time, the main tenant is still liable for the subtenant. Thus, as a landlord, you can sue the main tenant for not fulfilling the contractual duties.

Your rights as a main tenant

As a main tenant, you are the landlord for the subtenant. Thus, you have the same rights as the landlord.

You must first terminate the sublease in writing. If the subtenant doesn’t move out, you can file an eviction suit against them. You can also claim for damages. 

Frequently asked questions

Can you sublet your property to tourists?

No, subletting the rental property to tourists is not legal in Germany. You are not allowed to list the property on portals like Booking.com or Airbnb for short-term rentals. This comes under “misuse of rental space” (Zweck­entfremdungs­satzungen).

In big cities, such as Berlin, Munich, Stuttgart, etc., the authorities don’t allow subletting to tourists due to a shortage of rental property.

Can you register (Anmeldung) with a sublet in Germany?

Yes, you can register with a sublet in Germany.

In Germany, it is legally required to register yourself when you move to a new city. To register, you need a document (Wohungsgeberbescheinigung) from your landlord. This document states that you are moving to an address on a particular date. 

When you sign a sublease contract, the main tenant must provide you with the Wohnungsgeberbeschienigung. 

Do you pay tax on sublease income in Germany?

Yes, the rent you receive by subletting the property must be declared in your income tax return. Many main tenants either don’t know this or don’t declare this income.

If the tax office finds out that you have undeclared sublet income, you can expect hefty fines.

References

• https://www.berliner-mieterverein.de/recht/infoblaetter/info-8-untermiete-und-untervermietung-hauptmieter-und-untermieter.htm
• https://www.finanztip.de/untermiete/
• https://www.mietrecht.org/untervermietung/hauptmieter-kuendigt-untermieter-zieht-nicht-aus/#I
• https://deutschesmietrecht.de/steuern/365-untervermietung-steuern-freigrenzen-steuerhinterziehung.html
• https://www.promietrecht.de/Untermieter/Vermieterbescheinigung-fuer-Untermieter-AnmeldungWohnsitz-E2286.htm
• https://www.test.de/Mietrecht-Wann-die-Untermiete-erlaubt-ist-4751225-0/