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RIGHTS

What you need to know if you sub-let in Germany

Many foreigners in Germany end up living as subtenants. It is often more convenient - especially for those of us staying for just a short while - but it also comes with risks. So what are your rights? We take a closer look.

Published: 11 June 2020 16:53 CEST
Updated: 26 December 2021 08:52 CET
What you need to know if you sub-let in Germany
Signing a contract. File photo: DPA

Expats decide to enter sub-tenancy agreements for various different reasons. If you’ve just moved to the country as a young professional you often move into a room in a Wohngemeinschaft (WG or shared flat) as your first step to finding your feet in the country. More often than not you sign an Untermietvertrag (sub-contract) with the Hauptmieter (main tenant) rather than dealing directly with the landlord.

To be clear. if you haven’t personally signed a contract with the landlord (or more commonly with the Hausverwaltung), you are a sub-tenant.

Others decide they want a furnished apartment – and the way things work in Germany – that normally means subletting an apartment from someone who is out of the country for a year or two.

Sub-letting is convenient: you can find a place relatively quickly and you don’t need to go through all the complicated paperwork of proving your finances are in order.

Unsurprisingly, though, it can make you more vulnerable to the whims of the main tenant or landlord. Here is what you should know to ensure you avoid ugly arguments with those you live with.

READ ALSO: Here’s where rents are falling and going up in Germany

Signing the contract

Legally you don’t need to sign a contract as a sub-tenant – a verbal agreement counts. But the devil is in the detail – so all tenant associations strongly urge you to put the agreement down on paper.

The main tenant will most likely download a standard template from the internet. These contracts are normally fairly thin on detail though, only giving the address of the property and details of notice of cancellation of contract.

Before you sign the contract it is advisable to ask whether the main tenant has received permission from the landlord to sublet the room. If they have not received this permission and the landlord finds out, then he has the right to cancel the original contract immediately – meaning you’ll end up on the street with all your belongings before you know it.

On your side, you should ensure with a furnished property that the washing machine etc are listed in the contract and that a clause is inserted stating that they are in working order.

READ ALSO: Know your rights: The advice you need about renting in Germany

             A student searches for flat-share. Photo: DPA

The level of the rent

Somewhat strangely given how regulated rents are in Germany, the main tenant can charge you whatever they like as the rent. So it is important to inform yourself first on what a typical rent is in the area you are staying.

If they are demanding a level of rent that seems too high for the property you are moving into, it is probably best to walk away. Who knows what other surprises they have in store for you further down the road?

The main tenant’s responsibilities

Whatever happens, the main tenant is ultimately responsible for damages in the apartment – they are the ones who have a legal agreement with the actual owner and ultimately they are liable for property damage. This means that a Hauptmieter could well demand that you have a Haftpflichtversicherung (liability insurance) before signing a contract with you.

The main tenant has to ensure that the rooms you move into are in the condition set out in the contract. Any paragraph inserted into the contract which tries to get them out of this responsibility is legally null and void.

If you find that something is not working – eg the washing machine is broken – you have a right to pay only part of the rent until it has been fixed. In other words: the main tenant is responsible for the upkeep of the apartment, not you.

The main tenant also isn’t allowed to terminate the contract with the landlord if that would lead to a breach of his contract with you. He also isn’t allowed to try and provoke the landlord into cancelling the contract by not paying the rent. If you are kicked out because the main tenant hasn’t kept up to date on payments then they are legally obligated to cover your moving costs.

Staying warm in winter

The main landlord must provide heating between October and April. If heating is not provided in your house then you have the right to pay reduced rent to the main tenant until the problem is rectified. The main tenant must then take the problem up himself with the landlord.

Cancelling the contract

This is the aspect of subletting that causes the most conflict. What if for whatever reason the main tenant decides they don’t want you living in the apartment anymore? Whatever they claim, they are not allowed to kick you out from one day to the next.

The exact length of a Kündigungsfrist (notice period) depends on the type of rooms you rent. Here’s the breakdown.

Was the room empty when you moved in? That means you have fairly strong rights. You yourself have to give the main tenant three months’ notification – and you have to notify them by the third day of the month. For example if you notify them by June 3rd you are tied to the contract until August 31st.

For an unfurnished room the main tenant has to give you six months’ notice unless they have good reason to cancel the contract – i.e. you have broken your side of the bargain. And if you’ve lived there for more than five years that period of notification is even longer.

SEE ALSO: Renting in Germany – What you need to know

For furnished apartments the period of notification is much shorter. Both parties can give notification of just two weeks – and they don’t need to provide any reason for doing so.

Taking over the contract

Imagine this: you are subletting the perfect apartment with a view over the city and the main tenant decides she doesn’t want to live there anymore. Perfect you might think – you can take it over and have it for yourself. Well unfortunately, your dreams might be dashed by reality.

Living in the apartment as a subtenant does not give you any privileges when it comes to taking over the contract. As long as they give you the required period of notification your time’s up. Legally you have never had a relationship with the landlord so they have no legal responsibilities towards you.

So if the landlord wants everyone to move out so they can find new tenants on increased rent, they have every right to do so.

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RENTING

Can a flat swap help me find a new apartment in Germany?

Renters in Germany are increasingly turning to flat swaps to find a new home in a tight housing market - but the legal situation can be complicated. Here's what to know if you're considering exchanging your apartment for a new one.

Published: 22 March 2023 10:31 CET
Can a flat swap help me find a new apartment in Germany?

If you’re looking for a new place to live in Germany, you may find that on familiar sites like Immobilien Scout and WG Gesucht, a less familiar apartment-finding option has emerged: wohnungstausch. 

Wohnungstausch translates to “apartment exchange” or “flat swap” in English, and given the lack of affordable housing options in many cities across Germany, some residents have decided to take this alternative route. 

But what does the apartment exchange process entail, what are its advantages and disadvantages, and what does its growing popularity say about the state of Germany’s housing market? Here’s everything you need to know about Tauschwohnungen. 

READ ALSO: Six confusing things about renting a flat in Germany

What even is a ‘flat swap’? 

Very basically, it involves swapping your own apartment for someone else’s with the approval of both landlords. Each party in the exchange then agrees a new contract with their new landlord. A classic example would be a couple with a growing family swapping with an older couple looking to downsize, or someone with a big place on the outskirts of town looking for a smaller place in the city centre. 

While you can come across opportunities for apartment exchanges on websites like WG Gesucht or Immobilien Scout, there are also companies that exclusively facilitate apartment exchanges through their websites, like Wohnungswap.de or Tauschwohnung.com.

On these, you’ll usually need to register with details of your current apartment – such as the size, number of bedrooms, the district you live in and any attractive features like gardens or balconies – before you can start getting in touch with people. You can then peruse the flats on offer in your city and see if anyone’s looking for a similar place to the one you have. 

How many people are doing flat swaps? 

According to Tauschwohung’s Managing Director John Weinert, the popularity of apartment exchanges has increased in recent years.

“It’s a mechanism that is becoming more and more popular because the housing market in Germany, especially in the large areas, is very crowded,” he said. “People are waiting in long queues [for] new housing, and rental prices are going to the moon.”  

Weinert explains that Tauschwohnungen offers various advantages for apartment-seekers: you can reduce competition with other potential tenants because of the one-to-one connection, you can avoid double payment because you end your original contract to pick up the new one, and in some cases, you can split the moving costs with the person you are exchanging with.

Moving house in Wittenberg

A car with a trailer drives through the forest near Wittenberg. You can sometimes split moving costs when doing a flat exchange. Photo: picture alliance/dpa/dpa-tmn | Christin Klose

But despite their growing popularity (Weinert said his site has drawn significant interest in the last two to three years), Tauschwohnungen make up only a miniscule part of the housing market in Germany. According to Weinert, 5,000 apartments were exchanged through Tauschwohnung in the last two years, compared to the 16 million moves estimated to take place in Germany during a two-year period.  

READ ALSO: Why Germany is seeing the ‘worst housing shortage in 20 years’

Why aren’t more people doing this?

Beyond apartment exchanges being a relatively new and unknown concept, this small number can also be attributed in part to the fact that tenants searching for housing on the free market lack the legal right to exchange apartments, meaning they have to involve landlords in the process to avoid the risk of having their contract cancelled. 

“[A swap] is only possible if all parties to the rental agreement consent, so the landlord and tenant of both apartments,” Jutta Harmann, spokesperson for the German Tenants’ Association (GTA) explained. “If I move to another apartment [through] the tenant exchange and have not informed the landlord about it, and if the landlord of both apartments does not agree, [the contract] can be terminated.” 

And given that the exchange’s approval is subject to the conditions the landlord sets, Hartmann explained that in many cases, a landlord will try to raise the rent for the new tenant’s contract, thereby nullifying a main draw of completing the swap in the first place.

So while in theory, the Tauschwohnungen process represents a way to make more affordable housing available in cities where it is hard to come by, and some people have been able to take advantage of this alternative, the lack of a legal right to exchange stands to limit its potential.

Could flat swaps become more attractive in future? 

Both Weinert and the GTA believe establishing the legal right to exchange under certain conditions through a federal law would address this issue. Such a law could prevent landlords from raising the rent in the case of a swap, eliminating a key deterrent. But Juttman predicts that a change in policy is not forthcoming anytime soon. 

“At the moment it is absolutely utopian to think that something like this will happen, since in Germany we currently have a federal government with a Ministry of Justice that does not care about tenancy law. So nothing will happen in the near future,” she said.

For now then, it seems that Tauschwohnungen will continue to play only a small role in the housing market. Still, it is worth keeping an eye out for them, as for the lucky ones, it represents an attractive alternative to the slog of the traditional search process.

“I think it’s still far away [from] becoming a normal way to find a new apartment. But we have to watch closely what is happening here,” Weinert said. “It’s a very, very hard market, and people are looking for alternatives to find a new home.”

READ ALSO: EXPLAINED: The hidden costs of renting in Germany

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