Termination after unauthorized "Airbnb" Subletting?
Is that even permissible?
Tenants are increasingly offering their home on Airbnb or other similar portals for temporary subletting to tourists. The daily rental to tourists is financially lucrative for the tenant and because of the short period of time is often waived to obtain the permission of the landlord for the transfer of use to third parties.
The Amberg Regional Court (LG Amberg, ruling of August 9.8.2017, 24 - 299 S 17/XNUMX) has now decided on a case in which a tenant rented his apartment to tourists without authorization in three cases. There was no consent from the landlord. The landlord terminated the tenancy without notice due to the unauthorized subletting. The pronounced termination was deemed ineffective by the Amberg Regional Court.
For tenants, however, this decision does not mean a "free ticket" for unauthorized subletting through Airbnb until the first warning. The court indicated that a warning could be dispensable if a large number of unauthorized transfers of use have already taken place and a special wear of the apartment has occurred.
There is a basic exemption requirement for unauthorized subletting of the rented premises via airbnb.com to guests for vacation stays. When examining the dispensability of the warning, priority should be given to the contractual agreements. But also, moreover, no such serious breach of duty is given that the continuation of the lease would be unreasonable despite warning. For the extraordinary termination without notice, the existence of an important reason is required. Such is in particular gem. § 543 II 1 No. 2 BGB before, if the tenant violates the rights of the landlord to a considerable extent by unauthorized that the leased property to a third party. This requirement was met, as the tenant rented the apartment at least three times via airbnb.com to guests for vacation stays. According to § 543 III 1 BGB, however, if the important reason in the breach of an obligation under the lease, the termination only after unsuccessful expiry of a remedy specified reasonable time or after unsuccessful warning. The parties had agreed within the framework of the lease that subletting or other use of the rented premises or parts thereof may only be made with the consent of the landlord. However, it was undeniable that the landlord consent was not available. The tenant had violated by the unauthorized sublease against a rental contract, which makes a warning in principle before termination required. The warning was not unnecessary in the opinion of the LG Amberg. With respect to the use contrary to the contract, a warning is unnecessary if it is inappropriate to prevent a future breach of duty of the lessee, if it can not establish a basis of trust or would not induce the lessee to act in accordance with the contract. However, in the view of the Court, that is not the case here. By saying a warning, the renter can clearly see the opposing will of the landlord, whereupon he can refrain from further subletting. By refraining from further letting, a basis of trust can again be created.
The court saw in the unauthorized sublease and no such serious breach of duty, so that the landlord despite reminder, the continuation of the lease would be unreasonable. This would only be the case if, in addition to the unauthorized transfer of use, further circumstances occur which make the breach of the contract appear to be particularly serious. The unauthorized third party leasing of the living space via Airbnb only gains the required weight due to the disregard of a previous warning. A special circumstance could, however, be that with the unauthorized sublease special wear and tear of the apartment would have gone hand in hand. Since, in the case in dispute, it was merely 3 cases of unauthorized subletting, that was not the case.
Should you also have questions about subletting your apartment or generally about tenancy law, then ours is ours Lawyer Michael Gabler to the side.