Subletting in Germany: When Must the Landlord Agree? (BGH 2026)

Subletting your apartment — when must the landlord agree?

You're moving abroad temporarily, starting a new program, or simply need extra income — and you're thinking about subletting part of your apartment. Can the landlord refuse? And what happens if you sublet without permission?

A January 2026 ruling by Germany's Federal Court of Justice (BGH) draws a clear line.

What the BGH decided (VIII ZR 228/23)

The case: A Berlin tenant had paid around €460/month net cold rent for a two-room apartment since 2009. When he moved abroad in 2020, he sublet the apartment without permission to two subtenants — for €962 net cold, totaling €1,100 warm rent. After an unheeded warning, the landlord terminated in February 2022.

The result: The BGH confirmed the eviction. Anyone subletting for profit has no "legitimate interest" under § 553 BGB. The right to sublet exists to cover your own housing costs — not to turn it into a business.

The two rules that decide everything

German law has two different sections that often get confused:

§ 540 BGB — Full subletting: You may only sublet the entire apartment with the landlord's consent. If they refuse, you may terminate the lease with extraordinary notice.

§ 553 BGB — Partial subletting: If you remain in the apartment yourself and only sublet a part (e.g., one room), the landlord must agree, provided you have a legitimate interest.

The difference: Moving out completely → landlord may refuse. Giving up one room while staying yourself → landlord usually must agree.

5 key takeaways for tenants

1. What counts as "legitimate interest"

Examples from case law: financial relief, a new partner, forming a shared flat (WG), temporary absence (semester abroad, caring for a relative). The interest must have arisen after the lease was signed.

2. What does NOT count as legitimate interest

Pure profit-seeking. If the sublet rent significantly exceeds your own costs, the landlord may legitimately refuse — and BGH ruling VIII ZR 228/23 now confirms this at the highest level.

3. Always ask in writing

Send the landlord a specific request: Who is moving in (name), starting when, which part of the apartment, what is the sublet rent? Without these details, the landlord may refuse.

4. Subletting surcharge — up to 25% possible

The landlord may demand a surcharge if subletting causes higher costs or more wear and tear. Common amounts are €20–25 per person, sometimes more.

5. Without permission = grounds for termination

Anyone subletting without consent risks termination without notice after a warning (§ 543 (2) No. 2 BGB). In the BGH case, the subtenants were secretly in the apartment for two years — enough to justify eviction.

What this means in practice

• Want to sublet a WG room? Write to your landlord with names, duration, and rent. If they refuse without reason, you may still sublet — or terminate with special notice.
• Moving away temporarily? Keep one room with your belongings, and § 553 BGB (partial sublet) applies. If you move out fully, it's § 540 BGB — landlord may refuse freely.
• Want to make a profit? No longer possible. Sublet rent may roughly cover your share of the costs, but not become an income stream — whether via Airbnb or classic subletting.

Important: Airbnb is usually forbidden

Short-term rental to tourists is almost always a commercial use legally and requires not only the landlord's permission, but also — in many cities (Berlin, Munich, Hamburg, Frankfurt) — a change-of-use permit (Zweckentfremdungsgenehmigung) from the municipality. Without both, fines of up to €500,000 are possible.

Does this apply to you?

Landlord refusing your sublet request? Or you've received a warning over unauthorized subletting? MieterHelfer helps you assess your situation — free and in seconds. Just describe what happened and get an initial orientation based on current case law.