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Subletting: Everything tenants and landlords need to know

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Legal classification of the sublease agreement

In principle, a tenant has the right to sublet an apartment or part of it in some cases. This is the case, for example, if he has a legitimate interest according to § 553 BGB, for example, if a stay abroad is planned and he leaves the apartment to someone else during this time in order not to have to pay for the rent while he does not live in the apartment at all. However, in the case of subletting living space, the landlord must give his consent in accordance with Section 540 of the German Civil Code (BGB). Only in the case of accommodation of close family members or caregivers is no express permission required. However, information must be provided to the landlord in all cases. In the case of subletting, the tenant and the subletting party conclude a separate contract. For this so-called simple sublease agreement, there are numerous templates that regulate all relevant facts for the relationship. The rental agreement between the main tenant and the landlord is not affected, so the rent must continue to be paid to the landlord on time.

Permission to sublet

The subletting of living space must be approved by the landlord, however, the refusal of such permission is only legal if the subletting relationship is unlawful for them according to § 553 BGB. Provided that the permission to sublet was not obtained and subletting happened nevertheless, you as the landlord can claim damages from the tenant, it is also possible to issue an extraordinary notice of termination. The notice period for subletting without permission is then three months. This also applies if there is a temporary tenancy agreement.

Subtenants, just like main tenants, must declare their residence at the registration office

Rights of the subtenant

Anyone who wishes to sublet an apartment must make some concessions to the person to whom they are subletting. Among the subtenant's rights is the right to have the room or apartment in an orderly condition in accordance with the contract. If the subletting was done without the landlord's permission and the landlord demands the surrender of the rented property, it is possible to assert claims for damages against the main tenant. If there is an important reason, the sublease can be terminated without notice. In principle, the notice periods for a sublease are the same as in the lease agreement between the landlord and the main tenant.

Tax treatment of subletting

If someone wants to sublet an apartment, tax aspects are also important. In principle, income from subletting also counts as taxable income from rent or lease. However, this is only required above an exemption limit of 520 euros per year. Income from subleases that is below this limit can remain untaxed. However, it is important to note that the declaration in the tax return must be made immediately as soon as this amount is exceeded by only one euro, because it is an exemption limit, not an allowance. If the income is concealed, this can be interpreted as tax evasion and bring with it all the associated consequences.

Frequently asked questions

Written by:

Stefanie Aust, Guest Writer

Stefanie loves to put complex topics from the real estate world into understandable and inspiring words. Whether it's about the right financing, choosing the right type of flat, or a successful property search: Stefanie is happy to inform you.

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