Subletting a flat in Germany – you should pay attention to this

Subletting a flat in Germany is often the most straightforward way to land on both feet.

Newcomers often don’t have the financial record & the necessary network to rent a flat of their own in the first few weeks or months. With no SCHUFA record, no relatives, friends and sometimes no job, it’s a real challenge.

A good temporary solution is to turn to sublets. Not only is sublet legal in Germany, but it’s also a very common practice. A sublet in Berlin (or any other city in Germany) often means 2 scenarii:

• The main tenant has a contract with the landlord and wants to create a flat share (WG). All flatmates will sublet one of the rooms.
• The main tenant is going away for a while but they will eventually return. They will sublet the whole flat for some weeks or months.

At the end of this post, you will know about the most crucial points to remember when signing a subtenancy contract. This is relevant for subtenants and main tenants.

Disclaimer: the information in this post is relevant for sublets in Berlin, but also for anywhere in Germany.

How to find sublets

Here are key terms to use during your search:

• Zwischenmiete (In between rental): This describes a temporary sublet in which the main tenant is leaving for several weeks or months at a time. They are pretty sure to return and don’t want to cancel their contract with the landlord. This term can apply for flat shares and flat alike.
• Untermiete (Sublet): this usually describes a more permanent sublet. It also can apply to flats & flat shares.

Sublets in Berlin are often listed in the usual portals (as listed here for flats & here for flat shares). However, sublet offers are usually posted by main tenants themselves. This means that you will find them more often on classifieds websites than on proper real-estate platforms (à la Immoscout).

Legal aspects of sublets in Germany

Landlord permission

Subletting in Germany is allowed as stated in the civil code (§ 553 Abs. 1 BGB). However, it is considered a temporary situation occurred by specific situations. Some example includes moving to a different city for work or studies, or the main tenant can no longer afford the rent after losing a job.

Those cases may qualify as a so called “legitimate interest” when it’s only about renting out one room in the home. In this case, a landlord cannot refuse to give permission.

When subletting a whole flat however, the landlord can refuse to give consent (regardless of the life situation). The landlord can also refuse to sublet if the subtenant previously had a bad history with the landlord or if the sublet would make the the home overcrowded.

In any case, you need to ask for consent before the start of the contract in written form. In this letter, you need to state the following things:

• Why you need to sublet
• Start date, End date
• Identity of subtenant.

You can use this template from the Berliner tenants’ association.

Deposit

The main tenant may only demand a maximum deposit equal to three months worth of rent (i.e. excluding utilities, Kaltmiete). Moreover, the subtenant has the right to pay this deposit in three installments, with the first one due at the signing of the contract. Be aware that the main tenant is obligated to keep this money separated from their own assets. If you so wish you can ask them to prove they are saving your deposit separately from their own assets.

When you vacate your apartment, you will receive the deposit back with interest – if the apartment is in good shape.

Rent price

Main tenants are not allowed to charge the subtenant more than what they pay themselves to the landlord. The price is intended to cover the costs only, as stated in § 5 Wirtschaftsstrafgesetz . However, the law also allows some room since main tenants almost always include furniture/appliances/etc as part of the deal (source). A small increase within 20% is thus usually considered acceptable.

The main tenant has to declare the rental income as part of their yearly tax return, but does not have to pay tax on it, if no profit was made.

Contract termination

Here are few things to know about (early) sublet contract termination in Germany:

• The statutory termination conditions applies to you as a subtenant. This means that the main tenant has to give you three months notice and only if there is a legitimate reason from their side.
• This right is different if you have signed a temporary sublease contract. The protection against early termination in general tenancy law does not apply to subletting if the main tenant has rented the apartment in whole or in part with furniture (section 549 BGB). In this case, only 2 weeks notice apply, with no legitimate reason.
•  If the main tenant is effectively terminated by the landlord, the sub-tenant must vacate the apartment at the same time.

Damages & liability

Even if the subtenant cause damages on the property, the main tenant is actually responsible for them in the eyes of the landlord (and the law). It is therefore recommended for the subtenant to sign-up for liability insurance in Germany.

The main tenant is also liable if the subtenant fails to pay their share of the rent.

Sublet contracts in Germany

Believe or not, a written contract is not required. It is however a good idea for all parties involved to draft one. It should include the following:

• Names of the main tenant and the subtenant
• The exact description of the apartment (address, floor)
• Start and end date of the lease
• Rent price
• Additional charges (internet, electricity, etc)
• Which rooms may be used
• How many keys were given
• How much deposit is due
• House rules (pet, smoking, parties, etc)

You can use this sublet contract template for Germany.

It’s also a good idea to properly document the state of the property, furniture & appliances. You can read how to do that in this apartment handover guide for Germany. This is will serve as a reference at the end of the contract when returning the deposit.

Sublets in Germany – FAQ

Sources: 1, 2, 3.