A flat-sharing community (WG) consisting of four people in an apartment in an old building in Berlin submits an application to the main owner and landlord to sublet premises to two other people. The landlady agrees in principle to the subletting, but demands a subletting surcharge of 25.56 euros per month. She bases her demand on an agreement from the rental contract (Section 553 (2) BGB). This states that a rent increase may be levied in the event of subletting if the subletting would be unreasonable for the landlady without a surcharge.
The tenants of the WG considered the owner's demand to be inadmissible and brought an action for consent to subletting without increasing the rental costs (AZ 64 S 104/18). The Berlin-Charlottenburg Local Court shared the landlady's view. The plaintiff succeeded with the appeal before the Berlin Regional Court. This is because, according to the Regional Court, the owner's claim is invalid, as there are no legally valid reasons to prove that the subletting of the apartment would be unreasonable for the owner without a rent increase. The Regional Court justifies this on the basis of Section 553 (3) of the German Civil Code (BGB).
It had already been agreed at the beginning of the contractual relationship that the apartment would be occupied by six subtenants. Since there are only four tenants living in the shared apartment, it cannot be assumed that the apartment would be overcrowded with two subtenants. It is also not apparent to the LG that the tenants want to achieve an economic added value from the subletting. Even if initially there would be a small surplus from the rental income of the subtenants (285.54 euros instead of 330 euros per tenant), the plaintiff states to offset the income with the increase in electricity consumption, a pro rata GEZ payment as well as telephone and Internet payment and other expenses, such as the use of furnishings and common new purchases.
Source: LG Berlin
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