Subtenant

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A sub-tenant (obsolete after-tenant ) is someone who uses living space or business premises as the tenant of a main tenant . The contractual relationship between the sub-tenant and the main tenant is called sub- tenancy.

General

Only the main tenant in a lease agreement , the Party of the landlord. The sub-tenant concludes a lease ( sub- tenancy ) with the main tenant so that there is no legal relationship between the sub-tenant and the landlord. If at least two people jointly conclude a rental agreement with a landlord, there is no sublease, instead all tenants generally enter into a lease with the landlord as joint and several debtors ( Section 421 (1) BGB ). The landlord can then demand the rent in whole or in part from each of the tenants at his discretion, the settlement takes place between the tenants.

With rising rents, subletting is an economical option, especially in large cities, through which the main tenant and subtenant can share the rental costs and reduce their individual rent burden rate. It is also an option if the main tenant does not use his apartment for a long period of time ( stay abroad , installation ) and the rented apartment is to remain occupied. Subletting as a vacation home is also widespread as part of the sharing economy, such as Airbnb .

Legal structure in German law

Need for permission from the landlord

Subletting of living space usually takes place in such a way that the tenant leaves the apartment or part of it with the landlord's permission to a third party for an indefinite period or for a limited period (after months or years), at least for a certain period. The transfer for use to third parties requires according to § 540 para. 1 BGB always the permission of the landlord. The only exception is the admission of next of kin to the rented space, which is part of the contractual use. Without the lessor's permission, subletting constitutes a breach of contract , against which he can take action in accordance with Section 541 BGB and Section 543 (2) No. 2 BGB. In the case of residential rental , the main tenant has a legal right to be granted permission in accordance with Section 553 (1) BGB; in the case of commercial room rental, the tenant only has an extraordinary right of termination. However, there is no legal entitlement to the granting of a permit if there is an important reason for the person of the subtenant , the living space would be excessively occupied or the leasing cannot be expected from the landlord for other reasons. Unauthorized subletting is an extraordinary reason for termination . A ban on renting out condominiums to holiday guests requires the consent of all apartment owners.

Scope of permission

A sublet permit does not generally entitle the tenant to leave the apartment to tourists on a daily basis . In the case cited, the BGH made it clear that the letting of the apartment to any holiday guests was not to be equated with the usually long-term subletting and that the subletting permit issued did not automatically include the letting to holiday guests. The right to visit is restricted by the purpose of the rental agreement. When renting accommodation, commercial visits by third parties (such as holiday guests) are not included in the contractual purpose of the rental apartment because it is a commercial use that is not permitted for apartments.

Liability of the main tenant

If the sub-tenant acts culpably in breach of contract in accordance with Section 543 (1) BGB , this is to be attributed to the main tenant in accordance with Section 540 (2) BGB.

Consequences of subletting for evictions

In the event of an eviction , the sub-tenant is considered the owner , so that the eviction enforcement against him also requires an enforcement order directed against him and cannot be carried out on the basis of an enforcement order issued against the main tenant. This often poses the problem for the landlord of living space that it only becomes apparent when the eviction is attempted that the apartment is sublet. A quick way to obtain an enforcement title against the subtenant in this case is the possible application for an injunction in accordance with Section 940a (2) ZPO.

Tax treatment

Income from subletting an apartment is usually included in income from renting and leasing in accordance with Section 21 of the Income Tax Act .

International

In Austria , subletting is regulated in the Tenancy Law (MRG). According to § 2 MRG, subleases exist if the rental agreement is not concluded with a main tenant. A permission from the landlord is generally not required. There is a ban on subletting in accordance with Section 11 (1) MRG for important reasons, such as complete subletting, or if the sublet rent exceeds 150% of the main rent (Section 26 (1) MRG) or the peace of the house is disturbed.

Since the introduction of the new tenancy law in 1990, subletting has been permitted in Switzerland . In doing so, the tenant requires the landlord's consent in accordance with Art. 262 Paragraph 1 OR . The landlord can only refuse consent in three cases ( Art. 262 Paragraph 2 OR). If a tenant sublet without the landlord's consent, the landlord may be obliged to pay compensation and also have an extraordinary right of termination. In Switzerland, the subletting of (furnished) living space is particularly interesting. With a comparatively very low vacancy rate of just under 1%, the housing market here is characterized by scarce supply and high demand.

literature

  • David Lachat, Daniel Stoll, Andreas Brunner: Tenancy Law for Practice. 5th edition. 2002, ISBN 3-907009-3 , pp. 407-429.

See also

Web links

Wiktionary: Subtenants  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ BGHZ 70, 327 , 329
  2. ↑ BGH, judgment of January 8, 2014, Az .: VIII ZR 210/13 = BGH NJW 2014, 622
  3. ↑ Volker Emmerich, BGB law of obligations: special part , 2009, p. 89
  4. ↑ Lawyers information magazine from June 10, 2014, subletting: The most important legal questions , accessed on June 12, 2014
  5. ↑ BGH, judgment of April 12, 2019, Az .: V ZR 112/18
  6. ↑ BGH, judgment of January 8, 2014, Az .: VIII ZR 210/13 = BGH NJW 2014, 622
  7. ^ BGH, decision of August 14, 2008, Az .: I ZB 39/08 = BGH NJW 2008, 3287
  8. ↑ Wüest & Partner, Real Estate Market Switzerland 2011 , accessed on May 1, 2017