Visitors, subletting and overcrowding

When housing is scarce and rents are high, low-income families in particular are willing to accept cramped living conditions. But where is the line drawn? And must landlords simply accept that their apartments are becoming increasingly overcrowded?

Generally, a tenant is allowed to have close family members live with them even without the landlord's explicit permission. This includes a spouse or partner and, of course, their own children. This happened in Munich, where a couple shared an apartment of just under 26 square meters. In the following years, the couple had two children and now lived as a family of four in the one-room apartment with a living space of 16 square meters.

The tenant did not respond to the property management's request to "reduce" the number of people living in the apartment, whereupon the landlord terminated the lease – justifiably, as the Munich District Court ruled (case number: Munich District Court, 415C 3152/15). The tenant is entitled to have his children and spouse living in the apartment. However, this must not result in overcrowding.

Ten square meters as a rule of thumb

The court ruled that, as a rule of thumb, an apartment is not considered overcrowded if it provides an average of ten square meters per person when housing families. In the present case, however, there were only about four square meters of living space per person, and that was all in the same room.

Visitor or roommate?

Unlike with close relatives, a tenant must obtain the landlord's permission if they wish to accommodate distant relatives or friends (§ 540 para. 1 of the German Civil Code). If their stay extends beyond four to six weeks and it is likely that the visit will become permanent, it is advisable to ask the tenant to clarify the living arrangements. Otherwise, silence could be interpreted as tacit acceptance.

Subletting only with permission

Subletting part of an apartment without the landlord's permission also constitutes a breach of the tenancy agreement, even if the tenant would have been entitled to such permission.

Even if permission to sublet has been granted, renting to holidaymakers is not permitted. In this case, too, the landlord is entitled to terminate the tenancy if a warning is issued without success.

Beware of traps!

If you categorically refuse a tenant permission to sublet, they have the right to terminate the lease with immediate effect. Therefore, in your response to a general inquiry from the tenant, it is best to point out that permission to sublet will only be considered once the tenant has named a specific subtenant. Otherwise, a well-informed tenant can exercise their right to terminate the lease with immediate effect if permission is refused outright – which is often the very purpose of the inquiry.

Sources: deutschesmietrecht.de, mietrecht.org, haufe.de, kostenlose-urteile.de, bundestag.de, tagesspiegel.de, gevestor.de, immonewsfeed.de