Whether as a convenient housing solution amid the competitive rental market or as a temporary arrangement while they get settled, plenty of expats in Germany end up living as subtenants. At the same time, lots of expats also choose to sublease their own apartments, for instance if they are doing a semester or a temporary work assignment abroad.
Subletting (untermieten) is relatively common in Germany, but like everything else it comes with its own set of rules, rights, obligations and risks. Here’s an overview of what you need to know if you’re thinking of subletting a room or an apartment, or renting out your own.
Subletting in Germany: The basics
In contrast to many other countries worldwide, subleasing is permitted in Germany - so long as you play by the rules. No matter whether you’re thinking of signing a sublet agreement, or want to sublease your own apartment, it’s good to have an overview of what is and is not allowed.
What does sublet mean?
A sublet (sometimes also known as a sublease) is a contract under which a tenant rents out their apartment or room to another individual, but retains their status as tenant. The individual they rent to is known as a subtenant. The subtenant has the same rights and obligations as the original tenant.
You should also note that German rental law does not consider the apartment to be sublet if the person moving in belongs to one of these groups of people:
- Close family members, including spouses, parents or children (but not siblings, more distant relatives or partners)
- Visitors, even over longer periods of time (up to six weeks)
- Domestic workers or nursing staff
When is subletting allowed in Germany?
According to Section §§ 540 and 553 of the German Civil Code, a tenant may sublease their apartment or room, but they must first obtain consent from their landlord or property manager. You can sublet your room or apartment for as long as you like, provided the landlord has given their permission.
In some cases, German law stipulates that the landlord must allow their tenant to sublet. This depends on whether the tenant wishes to sublet the entire apartment or only part of it, and if they have “legitimate interest”:
Subletting an entire apartment
If the tenant wishes to sublet their entire apartment, the landlord is allowed to refuse permission.
Subletting individual rooms
If, however, the tenant only wishes to sublet individual rooms, the landlord may be obliged to give their permission, if the tenant has a “legitimate interest” in subletting. This is usually if there have been changes to the tenant’s personal or financial circumstances. For instance, they might ask to sublet rooms after a divorce or separation, or after losing a job. This is deemed legitimate interest, since the tenant may be unable to cover the rent on their own. The landlord therefore has to agree to the sublet.
However, this “legitimate interest” must have arisen after the lease was signed. Tenants cannot move into an apartment that is too expensive for them, and then later request to sublet rooms.
Subletting for a stay abroad
If the tenant needs to move abroad for a while (for instance for a temporary job), this can also be deemed “legitimate interest”, even if the entire apartment is sublet. However, the landlord is only obliged to give their permission if the tenant does not entirely give up their apartment while they are abroad. For instance, they might leave some furniture behind, retain a room for their use only, or keep hold of the keys.
In other instances, the landlord may choose to allow a sublease arrangement - but they are not obliged to.
Getting a sublease agreement from your landlord
To get permission from your landlord for a sublease, you need to tell them:
- Why you are planning to sublet
- If you have legitimate interest
- How long you will sublet for
- Who is moving in
Your landlord will then respond. Although in theory an oral contract is binding, if there was ever a legal dispute the main tenant would be obliged to prove that the landlord had given their permission for a sublease. It’s therefore always better to get permission in writing.
If the landlord has not given their permission to sublet the room, and they find out about it, they have every right to cancel the main tenant’s original rental contract immediately.
In some cases, the landlord has the right to demand additional fees if the main tenant subleases the apartment. This may be the case, for instance, if the tenant pays a lump sum towards their utilities and the landlord can reasonably say that an additional tenant will inevitably lead to higher costs. But the landlord must put this to the tenant before the sublease is agreed upon; the tenant has the right to refuse, but then the sublease cannot take place.
When are landlords allowed to say no to a sublet?
A landlord can refuse to give their permission to a sublet in the following situations:
- If they have reasonable grounds to reject the subtenant (for instance if they have already been the main tenant and defaulted on the rent, or are otherwise negatively known to the landlord)
- Subleasing would overcrowd the apartment (more than one person per room)
Subletting to tourists in Germany
Even if your landlord gives you permission to sublet, this does not mean you can automatically rent out your apartment to tourists as a holiday home, for instance on platforms like Airbnb. You would risk having your contract terminated.
How much rent should the subtenant pay?
The rental income the tenant receives from the subtenant is supposed to only cover their costs - that is, it should not significantly exceed the amount they pay to the landlord in rent and utilities. If the apartment is being rented furnished, a surcharge may be added.
Legally, the sub-tenant doesn’t need to sign a contract with the main tenant - a verbal agreement will suffice - but to prevent problems or disagreements down the line, all tenants associations strongly advise you to put your subleasing agreement in writing, with a sublet contract - or risk having to hire a lawyer later down the road!
Drafting a sublease contract in Germany
Most sublease contracts follow the same set format, containing details about the main tenant and subtenant, and the notice of cancellation of contract. Make sure your contract includes the following information:
- Names of the main tenant and the subtenant
- The exact description of the apartment (address, floor)
- Start and end date of the lease
- The subrent to be paid and any additional charges (e.g. for internet, water, energy)
- When these costs are to be paid and how (e.g. direct transfer into a bank account or a money transfer)
- Which rooms may be used
- How many keys were given
- How much deposit is due
- What condition the rented apartment is in
- House rules regarding things like smoking and pets
- Signatures of both parties
Sublease contract template
You can also download a standard sublease contract template from the internet. A simple search for “Untermietvertrag” will bring up plenty of examples.
Cancelling a sublease contract in Germany
According to German rental law, cancelling a sublease contract must be done in writing. The main tenant cannot simply kick out the subtenant whenever they like - but the exact length of the notice period (Kündigungsfrist) depends on the type of room being sublet.
If the room was sublet empty, the subtenant has to give the main tenant three months’ notice if they wish to move out, and they have to notify them before the third day of the month. For instance, if you want to move out by September 30, you need to let the main tenant know by July 3.
The main tenant, on the other hand, has to give the subtenant six months’ notice - unless they have good reason to cancel the contract (for instance, if the subtenant has failed to pay rent). If the subtenant has lived there for longer than five years, this notice period is even longer.
If, however, the room was sublet furnished, a much shorter notice period of just two weeks applies. The main tenant also does not need to provide a reason for cancelling the contract.
Subletting & Administration
From taxes to liability insurance, subletting comes with a number of additional administration tasks. Here’s what you should know.
Subleases & Liability
Whatever happens, ultimately the main tenant is responsible for damages to the apartment, since they are the ones who have a legal agreement with the landlord. This includes both negligent and intended property damage or other breaches of contract. The main tenant is also responsible for covering the subtenant’s share of the rent, if they default.
To be on the safe side, the main tenant might therefore ask the subtenant to take out some kind of insurance, such as liability insurance (Haftpflichtversicherung), before the contract is signed.
As subtenant, you also have your own tenant rights vis-a-vis the main tenant. For instance, the rent can be reduced if anything included in the contract is not provided or functioning properly (for instance, if the washing machine isn’t working or there is no hot water).
Is sublease income subject to taxation in Germany?
If you are subleasing your room or apartment, you are legally obliged to declare the rental income (for instance on your annual tax return), but you don’t have to pay tax on it, as long as you don’t make a profit.
Does the subtenant have to register with the local authorities?
Taking over a rental contract in Germany
If the main tenant decides to move out, the subtenant may be able to negotiate with the landlord to take over their contract and become the main tenant.
However, living in the apartment as a subtenant, in the eyes of German rental law, does not give you any privileges when it comes to taking over the contract. So, if the landlord wants you out - for instance if they want to do up the apartment and then rent it out for money - there’s not much you can do to stop them. Legally, you never had a relationship with the landlord, so they have no legal responsibilities towards you.