Subletting: when you have to agree, and when you can refuse

EverReal Editorial Team. The same leasing technology chosen by 450+ real estate companies. Last updated: October 2026.

Problem: Your tenant asks for subletting, and both answers can be wrong. Cause: The obligation to obtain permission and the entitlement to permission coexist in the law. Premise: Section 553 of the German Civil Code (BGB) only grants an entitlement to permission for part of the apartment, and even there, three grounds justify a refusal.

Tenants are not allowed to sublet without the landlord's permission (Section 540 BGB). For part of the apartment, an entitlement to permission exists if a legitimate interest arises after the contract is concluded. You may refuse if there is good cause in the person of the third party, the living space would become overcrowded, or granting permission cannot reasonably be expected of you for other reasons.

Do you have to permit subletting? The three case groups

It depends on the case group. Your tenant can only demand permission under Section 553 BGB for part of the apartment. Section 540 (1) sentence 1 BGB is the starting point: Without the landlord's permission, the tenant is not entitled to transfer the use of the leased property to a third party, in particular to sublet it. This applies to every case group. The only open question is whether your tenant can demand permission from you.

Regarding the second row: According to the Federal Court of Justice (BGH), the claim fails on the criterion of "part of the living space" only if the tenant intends to hand over the entire living space to a third party. In that case, the special right of termination suffices for them (BGH, 11.06.2014, VIII ZR 349/13). If your tenant wants to exit the contract instead of merely subletting, it is a matter of a replacement tenant: Replacement tenant: when you must accept one, and when not.

When does your tenant have a right to sublet? The three conditions

Section 553 (1) sentence 1 BGB ties the entitlement to three conditions. If one is missing, there is no entitlement under Section 553 BGB, and the permission remains your decision under Section 540 BGB.

First: part of the living space. The entire apartment is not covered. However, your tenant does not have to retain the apartment as their center of life. According to the BGH, it is generally sufficient that they do not completely surrender custody, for example by keeping a room in which they store furniture or occasionally spend the night (BGH, 11.06.2014, VIII ZR 349/13).

Second: the interest arises after the conclusion of the lease agreement. If it already existed when the contract was concluded, this condition is not met. Have the tenant explain since when the situation has existed.

Third: the interest is legitimate. The bar is set low. According to the BGH, reasonable grounds that make the request understandable are sufficient, and any interest of not completely insignificant weight that is in accordance with the legal system is legitimate. It has recognized a multi-year work-related stay abroad, also aimed at reducing the costs of maintaining two households. An interest in profit is not legitimate: anything exceeding one's own apartment-related expenses does not support the claim (BGH, 28.01.2026, VIII ZR 228/23).

A prohibition on subletting in the lease agreement does not exclude the claim: an agreement deviating to the disadvantage of the tenant is void under Section 553 (3) BGB. The lease agreement as a whole is covered in Lease agreement template to copy: mandatory contents. Even with permission, your tenant remains your contractual partner and, under Section 540 (2) BGB, must answer for any fault of the subtenant in the use of the property.

When may you refuse subletting? Three reasons, and what a wrongful refusal costs

Section 553 (1) sentence 2 BGB specifies the exceptions. The entitlement does not exist if

1. there is good cause in the person of the third party,

2. the living space would become overcrowded, or

3. granting permission cannot reasonably be expected of the landlord for other reasons.

The BGH does not permit any unwritten requirements on the tenant, such as predominant personal use (BGH, 11.06.2014, VIII ZR 349/13). The first reason must pertain to the named person; a general dislike of subtenants is not sufficient. For the second, the law specifies no square meter requirement per person; it depends on the apartment and number of persons in each individual case. The third is the catch-all provision: it requires a reason that makes this specific transfer of use unreasonable for you.

Anyone who refuses even though the entitlement exists breaches a contractual duty. In the case decided by the BGH in 2014, a landlord had denied permission for two out of three rooms to tenants who were living abroad for professional reasons for several years. He owed 7,475 euros in lost subrent. The unclear legal situation did not exonerate him: whoever decides against performance in an uncertain legal situation bears the risk that their assessment later proves to be wrong.

Even where no claim exists, a refusal has consequences. Under Section 540 (1) sentence 2 BGB, your tenant may terminate the lease extraordinarily with the statutory notice period, unless there is good cause in the person of the third party. A refusal can therefore result in a vacancy instead of a subtenant.

Inquire about the person, part, and time period

Have the tenant state in writing who is to move in, which part of the apartment will be provided, for how long, and for what reason. This allows you to verify the three conditions and the three grounds for refusal. Only request information that you need for this review.

Grant permission in writing and limit it

The entitlement relates to a specific person and part of the apartment. Specify the person, part of the apartment, period, and occasion in the permission for the sublease agreement. If the person changes, that constitutes a new request.

Only demand a subletting surcharge in case of unreasonableness

If granting permission is only reasonable for you upon an appropriate increase in rent, you can make the permission conditional upon your tenant agreeing to the increase (Section 553 (2) BGB). The surcharge is therefore tied to a burden that you can substantiate. The law does not specify a percentage figure.

Do not demand more than the law provides

Section 553 BGB only mentions the subletting surcharge as a condition for permission. The law does not provide for a security deposit from the subtenant, a share in the subrent, or a fee for the permission. Your tenant concludes the sublease agreement with the subtenant.

Clarify registration: the housing provider is your tenant

The subtenant must register within two weeks of moving in (Section 17 BMG), and the housing provider confirms the move-in (housing provider confirmation, Section 19 BMG). In the case of subletting, according to the administrative regulation on the Federal Registration Act, this is the main tenant, i.e., your tenant. The registration authority does not review the admissibility of subletting arrangements, so registration does not replace your permission.

If subletting occurs without permission: issue a warning first

If your tenant transfers the leased property to a third party without authorization and thereby violates your rights to a substantial degree, this constitutes good cause under Section 543 (2) sentence 1 no. 2 BGB. According to Section 543 (3) BGB, extraordinary termination without notice in the event of a breach of duty is generally only permissible after the unsuccessful expiry of a remedy period or after an unsuccessful warning. If your tenant continues the breach of contract despite a warning, you can sue for injunctive relief under Section 541 BGB. Reasons, written form, and deadlines are explained in Terminating a lease agreement: what landlords must observe.

Conclusion

The decision depends on the case group. If it concerns a room, your tenant has an interest that arose after the contract was concluded and is legitimate, and no grounds for refusal exist, your consent is owed, leaving only the details: named person, time period, and a surcharge in case of unreasonableness. If it concerns the entire apartment, you decide under Section 540 BGB, but should anticipate your tenant's special right of termination. For tourists, general permission without specific indications is not sufficient.

If your tenant moves out entirely, a new rental process begins. The procedure from documents to handover is shown in Renting out an apartment: the complete process. EverReal Go! is your digital assistant for leasing.

Legal notice: We do not provide legal advice. For specific legal questions, a specialist lawyer for tenancy and residential property law or your local owners' association, such as Haus & Grund, can help you.

Legal status: October 2026. The Tenancy Law Package II (government draft, BT-Drs. 21/6807, not applicable law) does not amend Sections 540 and 553 BGB.

Sources

• BGB, gesetze-im-internet.de, accessed on 14.10.2026: Section 540, Section 541, Section 543, Section 553

• Federal Registration Act (BMG), gesetze-im-internet.de, accessed on 14.10.2026: Section 17, Section 19

• BGH, judgment of 11.06.2014, case no. VIII ZR 349/13 (Subletting part of the living space, legitimate interest during a multi-year stay abroad, damages for refused permission), full text of the judgment (PDF)

• BGH, judgment of 08.01.2014, case no. VIII ZR 210/13 (Granted subletting permission does not include day-by-day renting to tourists without specific indications), full text of the judgment (PDF)

• BGH, judgment of 28.01.2026, case no. VIII ZR 228/23 (Profit is not a legitimate interest in subletting: anything exceeding one's own apartment-related expenses does not support the entitlement), full text of the judgment (PDF)

• General Administrative Regulation on the Revision of the General Administrative Regulation on the Implementation of the Federal Registration Act of 27.09.2022 (BAnz AT 07.10.2022 B2), number 19.1, wording according to Bundesrat printed paper 249/22, consent of the Bundesrat on 08.07.2022 (Decision)

• Draft bill of the Federal Government, BT printed paper 21/6807 of 01.07.2026 (Government draft on the Tenancy Law Package II, not applicable law)

• Misappropriation law: state law and municipal statutes, depending on the city (information available from municipal authorities)

• 450+ real estate companies: EverReal self-reporting, as of September 2026

Frequently Asked Questions

Is my tenant allowed to sublet without my permission?

No. Under Section 540 (1) sentence 1 BGB, the tenant is not entitled to transfer the use of the leased property to a third party, in particular to sublet it, without the landlord's permission. This also applies where they have a right to permission: they must then demand it from you. If they continue subletting despite a warning, you can sue for injunctive relief. Extraordinary termination without notice under Section 543 BGB in the event of a breach of duty is generally only permissible after an unsuccessful warning or deadline.

When do I have to agree to subletting?

You must agree if the three conditions of Section 553 (1) sentence 1 BGB are met together and no ground for refusal exists: it concerns part of the living space, your tenant's interest arose after concluding the lease agreement, and it is legitimate. According to the BGH, reasonable, comprehensible grounds are sufficient, such as a multi-year work-related stay abroad (BGH, judgment of 11.06.2014, VIII ZR 349/13). An interest in profit is not legitimate: anything exceeding one's own apartment-related expenses does not support the claim (BGH, 28.01.2026, VIII ZR 228/23). If the three conditions are met, you may only refuse if there is good cause in the person of the third party, the living space would become overcrowded, or the transfer of use cannot reasonably be expected of you for other reasons. A prohibition on subletting in the lease agreement does not alter this, as an agreement deviating to the disadvantage of the tenant is void under Section 553 (3) BGB.

May I demand a subletting surcharge?

Yes, but only as a condition for your permission. If granting permission is only reasonable for you upon an appropriate increase in rent, you can make the permission conditional upon your tenant agreeing to this increase (Section 553 (2) BGB). The surcharge thus compensates for a burden that you can substantiate, and only applies once your tenant has consented. The law does not state a percentage figure. Whether an amount is appropriate depends on the individual case.

May my tenant offer the apartment on vacation rental portals?

Not without your permission, and general subletting permission is not sufficient for this without specific indications. Day-to-day rental to tourists is a transfer of use to third parties, which Section 540 (1) sentence 1 BGB makes contingent on the landlord's permission. The BGH ruled in 2014 that a tenant with general permission cannot assume that they may also rent to tourists (BGH, judgment of 08.01.2014, VIII ZR 210/13). Additionally, misappropriation law applies, depending on the federal state and city. You can find out from the municipal administration whether short-term rental of living space is restricted there.

What happens if I wrongfully refuse subletting?

Your tenant can demand damages if harm results from it; your fault is presumed. Anyone who refuses permission to which the tenant is entitled under Section 553 BGB breaches a contractual duty. In the case decided by the BGH on 11.06.2014 (VIII ZR 349/13), this amounted to 7,475 euros (15.11.2010 to 30.10.2011, 650 euros in monthly subrent) in lost subrent. An unclear legal situation did not exonerate the landlord there. If you refuse permission, your tenant may terminate the lease extraordinarily with the statutory notice period, provided there is no good cause in the person of the third party (Section 540 (1) sentence 2 BGB).