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 possible

If subletting is only reasonable for the landlord with an appropriate rent increase, they may make their consent conditional on it (§ 553 Abs. 2 BGB), for example when it causes higher costs or more wear and tear. Amounts of €20–25 per person are often mentioned in practice; what matters is that the surcharge is appropriate.

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 a legitimate reason, you can demand consent, if necessary in court. Subletting without permission remains risky because it can lead to termination. If the landlord refuses permission, you also have a special right to terminate with the statutory notice period (§ 540 Abs. 1 Satz 2 BGB).
• 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.