The Berlin regional court ruled that unauthorized subletting of an apartment is a violation of a tenancy agreement that allows the landlord to immediately terminate the tenancy agreement without further notice and warning (LG Berlin, Az 67 S 360/14).
Berlin is popular among tourists. They often use the website AirBnB to rent apartments short-term. The tenant of an apartment in Berlin sublet his apartment via AirBnB to tourists for a period of 12 days. However, he did not ask his landlord for prior permission.After the landlord found out that the tenant used the apartment in this particular way, he terminated the contract of tenancy without prior notice or warning. The tenant argued that the landlord was either obliged to grant permission for the short-term lease or to give him fair warning before terminating the tenancy agreement.
German Law requires the landlord’s prior permission for such sub-letting. However, such permission cannot be unreasonably denied (Sec. 540 German Civil Code – BGB).In special constellations, the landlord cannot deny such permission, e.g. when the subtenant is a family member of the tenant. However, this was not the case here. As a consequence the conduct of the tenant was a breach of the tenancy agreement. According to German Law, the landlord can terminate the tenancy agreement without notice in case of an unauthorized subletting. Hereafter, the tenant must hand over the apartment immediately. But even in this case, German Law usually requires a fair warning of the tenant before the termination of the tenancy agreement, so that the tenant may refrain from breaching the agreement. This is due to the harsh effect a termination of the tenancy can have for the tenant.
The importance of the case at hand is that in the view of the court, a warning of the tenant prior to the termination of the tenancy agreement was not required since the breach of contract was especially severe. It was clear for the tenant that he was not allowed to sublease. He also subleased the whole apartment and not only a part of it. Further, the landlord had already previously terminated the tenancy agreement on different grounds. Despite this, the tenant nevertheless sublet the apartment without prior permission. The Berlin Regional Court found that because of these special circumstances, it was obvious for the tenant that a sublease would never be permitted by the landlord.
The decision is highly relevant due to the popularity of subletting networks like “AirBnB” in larger cities like Berlin. However, landlords should not be tempted to terminate tenancy agreements without a fair warning. Without the special circumstances in this case, the court might have required a prior warning or notice for the tenant before terminating the tenancy agreement.