Complete or partial cession

When it comes to obtaining the landlord's consent for a sublease, a distinction is made between complete and partial cession of the living space. When requesting consent to sublet, you must inform your landlord whether you want to sublet the entire apartment or only parts of it.

In a complete sublease, the landlord may reject the request without stating a reason. In this case, as the tenant you would have a special right of cancellation in accordance with Section § 540 Abs. 1 S. 2 of the German Civil Code (BGB).

In the case of partial cession, the landlord is required to give consent providing the reason for the sublease arose after signing the rental contract and constitutes a legitimate interest. If the landlord refuses consent, they are liable for damages to you due to lost rental income.

Important criteria for a partial cession include the tenant retaining custody of the apartment and continuing to use it for their own purposes. Whether the cession of a furnished apartment during an extended absence represents a complete or partial sublease has not been definitively answered from a legal standpoint. However, there are indications that the term "completeness" is not necessarily to be understood spatially, but can also be interpreted temporally. For example, if I temporarily rent out my entire apartment (because I am travelling), I am not renting out "completely", but only partially, because I am not giving up the apartment, but will return to it. See, among others, the judgement AG Tempelhof-Kreuzberg of 1.9.2011 - 14 C 212/1.

On 13.9.2023, another judgement of the Federal Court of Justice (BGH) also appeared, which explicitly stated that a one-room apartment can also be partially sublet. In the specific case, the tenant sublet his one-room apartment and blocked off one square metre for his personal belongings and kept one key (judgement reference VIII ZR 109/22).

How do I obtain consent?

Ideally you would send your landlord or property manager a draft of the contract before concluding the sublease contract and ask them to give consent. The sublease contract contains all relevant information: Personal information of the subletter, rental price, rental duration, etc.

This transparency coupled with an acceptable reason as to why you wish to sublease your apartment will significantly improve your chances of receiving consent.

Using the tempoFLAT Online contract tool

If you are creating your sublease contract using the tempoFLAT Online contract tool, your landlord will also immediately see that you are subletting your apartment through us and therefore in a more secure and proper manner. This generates confidence and goodwill.

What do I risk if I don't inform my landlord?

If you cede your apartment to a third party without obtaining the consent of your landlord, this is regarded as an unauthorized sublease – regardless of whether or not you are entitled to that consent (see BGH, 2.2.2011, VIII ZR 74/10).

This entitles the landlord to warn you and, in case of continued unauthorized use, to terminate (possibly even without notice) your rental contract.

This can be particularly unpleasant for you if you have already concluded a sublease contract that you can no longer fulfill due to the termination of your primary rental contract. In this case, you might not only lose your apartment, but indeed be obliged to compensate your subtenant for damages as well.

May the landlord request a sublease-surcharge?

Provided that the landlord can prove that a sublease without surcharge would be unreasonable for him, he can demand a sublease-surcharge. For example, the Berlin district court (Az. 63 S 152/14) considered a surcharge of EUR 25 per month and subtenant due to a greater occupancy of a four-room apartment as reasonable. On the other hand, a contractually agreed general surcharge is ineffective.

No responsibility is taken for the correctness of this information.