Partial subletting in an apartment building: consent, overcrowding and burden

When part of an apartment in an apartment building is sublet, the actual use is decisive. In the full scope of the MRG, the landlord may rely on a contractual prohibition only where an important reason speaks against the subletting. Section 11 MRG refers in particular to complete transfer, disproportionately high subrent, overcrowding and a substantiated risk to peace in the building.

The relevant questions are therefore how many rooms are being made available, who is expected to live there, what rent has been agreed and whether the head tenant continues to use the apartment. A blanket approval or refusal does not answer these questions.

Section 11 MRG as the starting point for consent

A contractual prohibition of subletting is not the only question under the full scope of the MRG. Under section 11(1) MRG, the landlord may rely on it only where an important reason speaks against the subletting. The statute identifies typical cases. The planned use and its concrete effects must therefore be considered together.

A consent request should be made in writing and describe the relevant facts. It should state the rooms, expected duration, number of occupants, identity of the subtenant and agreed rent. This allows the response to address a specific proposal. The topic page on rent rolls and leases provides context for the contract and use information.

Review rooms, occupants and overcrowding

Section 11(1)(3) MRG addresses overcrowding. An important reason may exist where the number of occupants exceeds the number of living rooms or would do so after the subtenant moves in. An abstract assumption is not enough. The apartment’s rooms and the people who will actually live there must be established.

The review should record the room layout, current occupants and planned occupancy. A change during the sublease may also matter. Owners should document the facts objectively, and head tenants should describe the planned occupation precisely rather than relying on a general statement about the size of the apartment.

Distinguish subrent from additional burden

Under section 11(1)(2) MRG, a disproportionately high subrent may be an important reason against subletting. The comparison concerns the subtenant’s payment and the rent and other payments owed by the head tenant. The calculation matters, not merely the label used for the payment.

An additional burden on the building is a separate question. More occupants may affect shared areas, wear or the organisation of the building. Those effects must be connected to the actual occupation and the operation of the building. A general objection to another person does not replace an important reason within the meaning of section 11 MRG.

Classify house peace and actual use

Section 11(1)(4) MRG refers to a substantiated concern that the subtenant will disturb peace in the building. A refusal therefore requires concrete facts. General prejudice, an unexplained concern or the mere fact of partial subletting do not automatically establish that ground.

The proposed use, house rules and documented incidents should be kept separate. The head tenant remains responsible for duties under the head lease. The article on subletting rights in an apartment building addresses the contract chain where the head lease is ending. This article focuses on the prior question of consent to a specific partial sublease.

Separate partial from complete transfer

A proposed partial sublease must be distinguished from a complete transfer of the apartment. Section 11(1)(1) MRG expressly identifies complete subletting as an important reason. In addition, section 30(2)(4) MRG can treat a partial transfer as equivalent to a complete transfer where the parts retained are not regularly used to meet the housing needs of the tenant or persons entitled to enter the lease.

Actual personal use is therefore important. A head tenant who sublets one room and regularly occupies the remaining rooms is in a different position from a person who has effectively left the apartment to others. Case law and the circumstances of the person’s life may influence the assessment.

Secure contractual order and evidence

A reliable review requires the head lease, amendments, the sublease or draft and written consent. It should also include the room layout, number of occupants, duration and calculation of the subrent. These documents show whether the planned use fits the contract and statutory limits.

In an apartment building purchase, open consent questions should be visible in the property file and the contractual allocation of risk. The topic page on apartment building sales addresses the seller and handover perspective. For the partial sublease itself, the key point is that each item is assigned to the specific apartment and use plan.

Next steps for a proposed partial sublease

The head tenant and landlord should first record the same factual proposal in writing. The rooms, occupants, duration and rent can then be compared with section 11 MRG. If a possible reason for refusal exists, its factual basis should be documented separately. Consent may be limited to the use described in the request.

A clear document list helps prevent later disputes about consent and use. If a wider sale project is involved, the article on old-building renovation provides additional context. Receive new articles and legal updates through BRANDaktuellen Rechtsnews.