The BGH subletting profit ruling of 28 January 2026 settles an important question for tenants: if you sublet your room or flat, the Federal Court of Justice (Bundesgerichtshof, BGH) does not treat profit beyond your own housing costs as a legitimate interest. This matters for students and young professionals who sublet during a semester abroad, an internship or the holidays. The general rules are in our guide to subletting for students (in German); this guide covers the profit decision.
Kurz beantwortet: On 28 January 2026 the BGH (case VIII ZR 228/23) ruled that wanting to lower your rent is a legitimate interest in subletting under section 553(1) sentence 1 of the Civil Code (BGB), but making a profit beyond that is not. The landlord may then refuse permission (last updated: November 2026).
Key points
- The ruling of the BGH’s eighth civil senate (VIII. Zivilsenat) of 28 January 2026 carries the case number VIII ZR 228/23.
- Reducing your rent is a legitimate interest in subletting, whether or not you depend on the savings financially.
- Profit beyond your housing-related costs is not covered.
- Subletting without the landlord’s permission breaches section 540(1) BGB and can lead to termination after a warning.
- The court left open whether services such as furnishing can reduce the profit.
What did the BGH decide on 28 January 2026?
The senate dismissed the appeal on points of law of a Berlin tenant and ordered him to vacate. He had lived since 2009 in a two-room flat at 460 euros net cold rent. In 2020, while abroad, he sublet it to two people for 962 euros net cold rent. The landlord had not given permission. She issued a warning and terminated the lease in February 2022. The local court (Amtsgericht Charlottenburg) first dismissed her eviction claim, the regional court (Landgericht Berlin) upheld it and the BGH confirmed that (full text, VIII ZR 228/23, in German).
In essence the headnotes say: a residential tenant’s wish to reduce rental costs is generally a legitimate interest in subletting under section 553(1) sentence 1 BGB, regardless of whether the tenant depends on the reduction financially. Making a profit from subletting is not covered.
When can you sublet, and when can the landlord refuse?
As a rule you need the landlord’s permission for any subletting (section 540(1) BGB). If after signing the lease you have a legitimate interest in letting part of the flat to someone else, section 553 BGB can give you a right to that permission. The ruling clarifies what such an interest covers.
| Situation | Assessment under the ruling (as of November 2026) |
|---|---|
| You pass on only your housing costs to save rent | Legitimate interest under section 553(1) sentence 1 BGB, even without financial hardship |
| The sublet rent clearly exceeds your costs for the flat | No right to permission, the landlord may refuse |
| You sublet without permission | Breach of section 540(1) BGB, an ordinary termination can follow after a warning (section 573(2) no. 1 BGB) |
| You provide extras such as furniture or cleaning | The BGH left open whether this reduces the profit |
Why did the BGH decide this way?
According to the reasoning, section 553 BGB is meant to help tenants keep their home when circumstances change, for example during a stay abroad. Generating income is not the purpose of the provision. Commercial use of the flat falls within the landlord’s property right (Article 14 of the Basic Law). The senate found that the law does not require the landlord to share in the profit.
The senate also notes that the rule protects subtenants from excessive rents, and that subtenants carry part of the risk if a sublet is unlawful. A short overview is available in the legal commentary by Heuking of 30 January 2026 (in German).
What does the ruling mean for a semester abroad?
A typical case: you go abroad for a semester and hand your room to someone else. If you pass on only your costs, meaning rent plus utilities, you stay within what section 553 BGB protects. A mark-up that clearly exceeds your costs is not a protected interest under the ruling. Note that the case concerned a city with a tight housing market, and the BGH expressly left open whether a breach of the rent brake (sections 556d et seq. BGB) would also have supported the result.
Worked example: what is the difference in numbers?
Assumption: you pay 400 euros all-in rent for your room and sublet it for five months.
| Option | Sublet rent per month | Your cost per month | Surplus per month |
|---|---|---|---|
| Passing on costs | 400 euros | 400 euros | 0 euros |
| Mark-up | 650 euros | 400 euros | 250 euros, 1,250 euros over five months |
In the second option there is a surplus over your housing costs. Under the ruling the landlord may refuse permission for it. How far extras can justify a mark-up has not been settled by the highest court. A written agreement with your landlord provides clarity.
How do you ask the landlord for permission?
The request should be made before you sublet and state who is moving in, for what period and at what sublet rent. Show the sublet rent split into basic rent and utilities, so the landlord can see that you only pass on your own expenses. The more transparent the details, the less reason the landlord has to doubt a legitimate interest.
If there is a dispute over permission, a tenants’ advice service or tenants’ association can help review your specific lease. What matters is that you sublet only once you have the answer. The decision shows that acting on your own can end in a warning and termination, whereas an open request at worst leads to a refusal.
Frequently asked questions
Can I rent out my flat on Airbnb?
According to the legal commentary by Heuking, day-by-day tourist letting is not eligible for permission under settled BGB case law, and unauthorised use can even lead to termination without notice. Only the landlord’s explicit consent helps here.
Does the ruling apply to shared-flat rooms?
The ruling concerns subletting of residential space under section 553 BGB. In a shared flat much depends on who holds the main lease, see our guide on main tenant or subtenant in a shared flat (in German). Whether and how far the profit principle applies there depends on the individual case.
What happens if I sublet without permission?
That is a breach of the lease. In the decided case a warning, termination and eviction followed. In the worst case you lose the flat.
Do I have to share profit with the landlord?
The senate sees no duty to do so and created no rule for it. A voluntary arrangement does not change the fact that permission should be settled in advance.
How to proceed
- Decide whether you want to sublet and for how long.
- Obtain the landlord’s permission in writing, naming the subtenant, the period and the sublet rent.
- Set the sublet rent so that it does not exceed your housing-related costs.
- Record extras such as furniture or cleaning in writing and address them openly.
- Sign a written contract with the subtenant, see subletting for students (in German).
Related guides
- Living while studying: rent, shared flats, dorms and housing benefit
- Subletting for students: what is allowed
- Main tenant or subtenant in a shared flat
- Student Housing Benefit: Who Qualifies and How to Apply
- Liability insurance in a shared flat or your own flat
Sources: Federal Court of Justice, judgment of 28 January 2026, VIII ZR 228/23 (full text), 2026. Heuking, legal commentary of 30 January 2026. Statutes: section 553 BGB and section 540 BGB.
Last updated: November 2026. This guide is general information, not individual advice.
