Lease Act: In search of a transparent subtenant – real estate – economics

Patrick Müller has a problem. Rok rents a 2-room apartment in Friedrichshain. Because he is financially on a shaky basis and would like to live in a small flat share, he asked his landlord for a sublease permit. However, the municipal housing association WBM denied Müller the legal right under Paragraph 553 of the BGB. Accordingly, after concluding a lease, the tenant may require that, in the event of a legitimate interest, part of the living space be provided to a third party. It sounds easy, but it’s not. The Mitte housing association (claim: “Find your center”) has many questions for Müller and asks for a “self-assessment of the required roommate”. Questions are asked – inter alia – on pending actions for eviction, occupation, nationality, current landlord, unannounced dismissal, landlord and “residence permit”. Is it going too far? Is it a political question?

Müller thinks that there is no need to answer these detailed questions. After – initially unsuccessfully – changing the association of Berlin tenants, he now filed a lawsuit in the Tempelhof-Kreuzberg district court. If the landlord refuses to give his consent, the tenant may take legal action against his sublease application. Representatives of the WBM refer to the legal situation to be interpreted.

“A landlord may, among other things, refuse consent if a third party person has a serious reason for refusing,” says Thomas Grabig, a specialist lawyer for rental and residential real estate law. This is also the reason why the landlord can request information about the sublessee before granting the consent. “Incidentally, this also means that consent is granted only for this particular person and no general consent is given to such a transfer of use of part of the living space,” said a Berlin lawyer upon request.

It is common ground that, in the present case, the lessee can demonstrate a legitimate interest in the sublease and that it arose after the conclusion of the lease. The cost of Müller’s apartment was originally taken over by the Labor Office when the contract was signed. The rent for almost 57 square meters is 555.43 euros. Now, however, Müller no longer wants to live alone and share part of the cost of housing plus the cost of internet, insurance, cleaning and other things with the subtenant. “As it seems to me that the case, according to the available information, should also be granted the tenant’s right to consent.” There will probably be one of the typical cases where the tenant has changed so much after signing the lease that he would like to marry another person in the apartment, “says Grabig.

The WBM wrote to a tenant association in Berlin: “Mr Müller’s legitimate interest in subleasing is to partially cover operating costs such as rent and electricity. In the meantime, he has found a job, so now he has to pay the rent himself. “Müller must be able to demonstrate a legitimate interest in the event of a dispute; but the courts take it widely.

“Frequent cases are when, after concluding a contract, the tenant finds himself in a situation where he can no longer increase the rent himself or only with considerable effort, or where he no longer needs the apartment to the same extent due to professional development,” says Grabig.

Comments on the case law are superficial

WBM responded to Müller’s request for a sublease on 7 August with reference to the relevant paragraph 553 of the BGB and also does not leave paragraph 540 of the BGB (“Transfer of use to third parties”). It is stipulated here that the tenant is not entitled to allow a third party to use the rented property without the landlord’s consent. However, this is not planned at all, as the application also shows. If Paragraph 540 of the BGB seeks to prevent a lessor from being forced into a person as a new tenant with whom he does not have a tenancy agreement and whom he does not wish to have, this law is useless in this particular case: No new contractual relationship should be entered into with WBM. .

A Berlin judge, who is not entitled to comment on the classification of the case in the press for legal reasons (but knows the name Tagesspiegel), found that the WBM was not interested in the resident’s status as a subtenant and what the profession was. – or she – is watching. The judge considers that the usual comments in the case law should be “improved” a bit and take a position on the issues raised. By this he means answers to the question of what the landlord may ask and what data protection says about it. The legal situation here is “not secure”. In particular, because: “If he could not pay correctly from the beginning, the legal requirement is not met.”

WBM did not want to comment on the process upon request.

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