The Federal Court of Justice ruled on 28.01.2026 (BGH VIII ZR 228/23) that a tenant does not have a legitimate interest in subletting the residential space if they generate a profit through subletting that exceeds the coverage of their own housing-related expenses.

The Federal Court of Justice thereby clarifies when a landlord is not required to grant consent to subletting.

by Sinje Grefe

What were the facts underlying the decision?

The defendant had rented a two-room apartment in Berlin from the plaintiff since 2009. The net cold rent amounted to EUR 460.00 per month. The defendant sublet the apartment due to a temporary stay abroad and set a monthly net cold rent of EUR 962.00 plus advance payments for operating and heating costs, totalling EUR 1,100.00. The plaintiff issued a warning to the defendant for unauthorized subletting and subsequently terminated the tenancy agreement in due time. The plaintiff filed an eviction claim, which was dismissed by the local court. The regional court (as the court of appeal), however, granted the eviction claim.

What did the Federal Court of Justice decide?

The Federal Court of Justice dismissed the defendant’s appeal on points of law. The Federal Court of Justice thereby confirmed the plaintiff’s claim for eviction of the apartment.

The plaintiff’s termination was effective, as the defendant had no entitlement to be granted permission for profit-generating subletting.

When does a tenant have a right to consent to subletting?

A tenant may request consent to subletting if they have a legitimate interest within the meaning of § 553 para. 1 sentence 1 BGB.

Whether this also includes the tenant’s interest in subletting the apartment for profit was determined by the Federal Court of Justice through interpretation of § 553 BGB.

According to the Federal Court of Justice, subletting is based on the consideration of preserving the apartment for the tenant in the event of a significant change in their living circumstances. The purpose of subletting, however, is not to provide the tenant with an opportunity to generate profit.

The Federal Court of Justice further stated that while it is consistent with established case law to recognise a tenant’s wish to reduce their rental expenses as a legitimate interest, generating income beyond that level is no longer covered by this.

The Federal Court of Justice left open the question of whether services beyond the subletting of the apartment itself, such as the rental of furniture, are to be taken into account when assessing profit generation, or whether a tenant’s legitimate interest may also be denied due to a violation of the rent brake regulations.

Do you have further questions about subletting? We would be happy to advise you.

Your contact person: