In contract law what is a permit

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According to § 540 BGB, a transfer of use to third parties without the permission of the landlord is not permitted. The tenant must first obtain a formal permit. If the landlord refuses this permission, the tenant can extraordinarily terminate the tenancy agreement with the statutory notice period (§ 540 I S.2 BGB). This right of termination does not exist if the person of the third party has an important reason (Section 540 I sentence 2 at the end of the BGB), for example if there are concrete indications that the third party will disturb the peace of the house or damage the rented property. Then the tenant's right of termination is excluded. There is also an important reason if the intended use leads to overcrowding. More on this later.

Section 540 BGB also applies if the tenant wants to accommodate third parties in the apartment for a longer period of time in such a way that the third party should have the right to live in the entire apartment or to use it together with the tenant. Spouses of the tenant, their children and stepchildren may also be taken in without the landlord's approval. The minority, the need for upbringing or the economic dependency of the children are irrelevant here, only the close family ties are decisive. The life partner within the meaning of § 1 LPartG is on an equal footing with the spouse. However, life partner does not include the partner, d. H. to understand the girlfriend or boyfriend.

In the case of a long-term uncontested residential tenancy, the landlord is not entitled to either extraordinary or ordinary notice of termination if the tenant accepts his partner in the leased property without first asking the landlord for approval of the partial (third-party) letting or notifying the admission to have. At least that is what the LG Berlin decided, decision of May 16, 2017 - Az. 67 S 119/17. However, the recording should be reported beforehand with a request for permission.

For the parents of the tenant, according to the case law of the Bavarian Higher Regional Court, it depends on the circumstances of the individual case (BayObLG of October 6, 1997 = GE 1997, 1463). The type and size of the apartment as well as its occupancy and suitability for accommodating another person are decisive. The reasons and motives for the recordings must also be taken into account. As a rule, no permission should be required for the parents to be admitted.

In contrast, the admission of other relatives is subject to approval, this should already apply to the brother of a tenant (BayObLG of November 29, 1983 = WuM 1984, 13).

The provision of § 553 BGB is to be understood as a supplement to § 540 BGB. It contains a significant exception to the rule of § 540 BGB for renting an apartment: According to this, the tenant of living space has a right to be granted permission against the landlord if he shares part of his apartment with a third party for independent use want to leave.

If the permit is refused, the tenant can bring an action for the granting of the permit. If the landlord has wrongly refused permission, the tenant is also entitled to the extraordinary right of termination. In addition, the tenant can claim the lost sub-rent as compensation.

In a current BGH ruling from 2013 (Az. VIII ZR 349/13), the BGH stated the following:

The tenant's wish to be relieved of work-related travel and housing costs in view of the plaintiff's (temporary) work abroad represents a legitimate interest in subletting part of the apartment that the tenants only exempted one room in the three-room apartment from subletting and only wanted to use this for overnight stays during their stay abroad.

Section 553 (1) of the German Civil Code (BGB) does not set out any quantitative requirements with regard to the proportion of the living space remaining with the tenant or qualitative requirements with regard to its further use by the tenant. A “release of part of the living space to third parties” within the meaning of Section 553, Paragraph 1 of the German Civil Code (BGB) can usually be assumed if the tenant does not completely relinquish custody of the living space. For this it is sufficient if he keeps a room of a larger apartment in order to store furnishings and / or to use it occasionally for overnight purposes.

The landlord was therefore sentenced to pay damages in the amount of € 7,475.00 (lost sub-rent).

Before this judgment of the Federal Court of Justice, it was extremely disputed what was meant by the legal term “part of the living space”. There was agreement that Section 553 of the German Civil Code (BGB) should not be applied if the tenant has given the living space to a third party and only wants to continue using a basement room or a shared garage to store furniture or furnishings there. The same should apply if the tenant wants to use a room in the apartment alone for storage (so still Schmidt-Futterer /Blank, 10th edition, § 553 BGB marginal number 7). This view is no longer tenable due to the BGH ruling.

According to the cited BGH ruling, it should be noted that there is no entitlement to independent rental use of the entire apartment. However, if the tenant claims that he leaves furniture in a room and / or occasionally stays overnight in the apartment, the landlord must grant permission if the other eligibility requirements are met.

For this purpose, the tenant must have a legitimate interest in subletting. The mere wish of the tenant to take on a third party on its own is not enough. On the other hand, there are no particularly high requirements for the assumption of a legitimate interest. It is sufficient if the tenant has reasonable reasons that make his request for part of the apartment to be given to third parties understandable. Therefore, a legitimate interest must be affirmed if the tenant wants to reduce his housing costs by subletting (BGH, NJW 2006, 1200). The tenant's decision to form a long-term flat-sharing community is also one of the legitimate interests. It is essential that the interest in the transfer of use arises after the conclusion of the contract.

The tenant must therefore name the sub-tenant in his request and state his legitimate interest in the transfer of use. The landlord can either grant or refuse permission if he can invoke conflicting interests.

A conflicting interests of the landlord can be the overcrowding of the apartment. There are no generally valid criteria for determining overcrowding. First and foremost, the ratio of the number of rooms and the size of the rooms to the number of residents is decisive. As a rule of thumb, it can be said that there is no overcrowding if each adult or two children up to the age of 13 have a room of approx. 12 m² each.

The case law has affirmed overcrowding if an attic apartment with a size of 30 m² consisting of a kitchen, bedroom, hall and bathroom is occupied by two adults and three children between the ages of 7 and 14 (BGH WuM 1993, 529); when four adults and three children use a 70 m² four-room apartment; if two adults and six children are accommodated in a 57 m² apartment; if the tenant of an apartment of 25 m² takes in his wife and small child. This last decision in particular is commented as very dubious. In these cases there should be no entitlement to a permit. However, these principles cannot be applied to the question of the conditions under which the landlord can terminate the contract due to overcrowding. Different principles apply here.

The landlord can make the permission dependent on the willingness of the tenant to pay a higher rent if he can only be expected to let the rent go if the rent is increased appropriately. It is not a surcharge owed in addition to the rent, but an amendment to the contract due to an extended rental use. The landlord can refuse permission if the tenant wrongly refused a rent increase. If the tenant agrees to the rent increase, a voluntary amendment agreement is concluded. The landlord's entitlement to a rent increase depends on whether the landlord is burdened more by taking on the third party, for example by increased wear and tear on the apartment or by a higher burden of operating costs. This argumentation is not convincing if the operating costs are borne by the tenant anyway and greater wear and tear of the apartment due to the inclusion of a third party is in any case irrelevant from a realistic point of view.

In some cases, it is argued that the extent of the rent increase depends on the rent that is usually paid for living spaces with a comparable permit. The rent is mostly not based on the number of people moving in, but the landlord has a concrete idea of ​​the rent. For him, it will not matter whether the tenant moves into a three-room apartment alone or with his or her spouse / partner.

It is different in the case of real subletting. If the rental price is negotiated in such a case, it is customary for the landlord to participate in the sub-rent. As a rule, an amount of around 20% of the sub-rent will be appropriate (AG Hamburg ZMR 2008, 213). The sublease surcharges (§ 26 III NMV) applicable to price-linked living space cannot be used. The surcharges are unrealistic in terms of the amount (€ 2.50 surcharge per month if used by one person more). As a result, the amount of the surcharge is based on the criterion of reasonableness.

Please note that legislation and case law are subject to constant change and that statements in judgments cannot be generalized. It always depends on the specific individual case.

This article was published on by Falk Schuhmacher under questions about tenancy law, contract law.