BGH ruling on subletting a one-room flat

If you want to sublet your flat, you need the landlord's permission. If there is a legitimate interest in subletting, the landlord must agree. But what exactly is a sublet? And is it even allowed to sublet a one-room flat?

The case: The tenant lives in a one-room flat in Berlin. He asked his landlord for permission to sublet part of the flat due to a professional stay abroad from 15 June 2021 to 30 November 2022, which the landlord refused.

During his stay abroad, the tenant kept his remaining personal belongings in the sublet flat in a cupboard and a chest of drawers as well as in a room of one square metre at the end of the corridor, separated by a curtain and only available to him. He was also in possession of a key to the flat.

The ruling: The Federal Court of Justice ruled that the plaintiff was entitled to a claim under Section 553 (1) of the German Civil Code (Bürgerliches Gesetzbuch - BGB) for permission to temporarily transfer the apartment for partial use.

Justification: The cited Section 553 (1) BGB does not make any stipulations about the part of the flat remaining with the tenant and does not impose any requirements on the tenant's further use. The transfer of part of the flat to a third party is permissible if the tenant does not completely relinquish custody of the flat. A claim of the tenant against the landlord for permission to transfer use to a third party may therefore also exist in the case of a one-room flat.

An exclusion of one-room flats from the scope of application of Section 553 (1) BGB does not result from the wording of the law, the legislative history or the tenant protection purpose of the provision. The tenant of a one-room flat is in principle not to be regarded as less worthy of protection than the tenant of a multi-room flat. The plaintiff did not completely relinquish custody of the flat, he left personal belongings in the flat and also secured access to it by retaining a flat key.

(Photo: © Laurent Verdier, Pixabay)