Federal Court of Justice draws clear line on subletting
In a recent ruling, the Federal Court of Justice (BGH) made it unequivocally clear that anyone who sublets their rented apartment may not make a profit from doing so. Subletting is only permitted if it serves the purpose of covering a proportion of one's own rental costs—not to turn it into a business. MDR reported on the matter.
The case underlying the ruling originated in Berlin. A tenant had sublet his 65-square-meter apartment to third parties for €962 per month—even though his own rent was only €460. The difference was considerable. His landlord then terminated the lease—rightly so, as Germany's highest civil court has now confirmed.
Furnishing is not a free pass
The tenant in question defended himself by arguing that he had left the apartment fully equipped with a washing machine, television, kitchen, and other appliances. This, he claimed, justified the higher price. However, the Federal Court of Justice saw things differently. Even if a furnished apartment can generally justify a surcharge, this should not result in the sublet price being significantly higher than the tenant's own rent—at least as long as there are no legal requirements specifying how this furniture surcharge should be calculated.
The Federal Ministry of Justice is currently working on legislation to address precisely this issue. Until then, however, the scope for maneuver remains limited. A gut feeling or a rough estimate is not enough if, as a tenant, you want to avoid having your lease terminated.
Subletting requires permission—and a legitimate interest
What many people don't know is that anyone who wants to sublet their apartment must obtain the landlord's consent. This consent cannot be arbitrarily refused, but there must be a legitimate reason for subletting. This could be a stay abroad, a change in living circumstances, or financial hardship. However, commercial use of the living space through excessive subletting prices is not permitted.
This means that the rent paid by a subtenant must not be significantly higher than what the main tenant pays themselves—unless objectively verifiable additional services such as furniture justify a surcharge. And even then, only within reasonable limits.
How we see it
The pressure on the housing market is prompting some tenants to turn their apartments into a source of income on the side—especially in large cities. But this is precisely where the Federal Court of Justice is now pulling the emergency brake. Anyone who relies on someone else's property to make a profit must expect to be evicted themselves in the end.
The ruling provides urgently needed clarity: subletting is not prohibited, but it is not a self-service store. It is about fair treatment of living space—and about the clear distinction between private living and commercial use. Anyone who cannot or does not want to distinguish between the two should not get involved in such deals.
Source: mdr.de
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