Shared apartment as tenant

Shared apartment as tenant / Wohngemeinschaft

June 13, 2023

The legal framework

If several people live in a flat as a flat-sharing community, the question arises which party is the landlord's/landlay's contractual partner. Two constellations are conceivable:

On the one hand, there is the case, which rarely occurs in practice, that a flat-sharing community appears to the outside world as a community. In this case, the flat-sharing community is to be regarded as a civil-law- partnership (GbR) and a contractual partner of the landlord/landlady. This is the case, for example, if the residential community "Kommune 17" operates as a tenant. Since the company exists independently of the respective occupants of the flat, the flat can also be occupied by changing persons without requiring an amendment or adjustment of the tenancy agreement.

On the other hand, the tenancy can also be structured in such a way that it is not the flat-sharing community itself that is the tenant, but the individual members of the flat-sharing community or only individual members of the flat-sharing community. In the latter case, for example, a 5-room flat is rented to two people with low incomes, whereby the landlord/landlady should already know from these circumstances alone that the flat will not only be occupied by the two people. Then you will usually be granted the right to sublet to the other flat-sharing members.

In practice, the second constellation is usually chosen, i.e. one person (or more) rents the flat in order to then "found" a shared flat in it by taking other people into the flat. In this case, the persons to be included are legally considered subtenants of the (main) tenant. If subletting is not comprehensively permitted by contract, permission must be obtained from the landlord/landlady for each "new" subtenant.

The departure of individual tenants

Contrary to the first constellation, where the flat-sharing community acts as a society and the existence and composition of the flat-sharing community is irrelevant for the existence of the tenancy agreement or the parties to the tenancy agreement, it can be problematic for the residents of the flat-sharing community in the second constellation just described if individual main tenants leave the flat. It is then unclear whether the flat can be continued with other persons who want to become the main tenants.

For example, Fritz, Detlef and Dieter are renting a flat. All three become contractual partners of the landlord/landlady, they are all supposed to be equally entitled and obliged. However, if Fritz wants to leave the shared flat after a few years, it is legally disputed whether the landlord/landlady is obliged to include Rainer, the "new" flatmate desired by Detlef and Dieter, in the tenancy agreement in exchange for Fritz.

Some regional courts conclude from the purpose of the contract "shared apartment" that the landlord/landlady impliedly agreed to a change of tenant from the outset by renting to several persons "as a shared apartment". If the landlord/landlady then wanted to avoid that third parties could enter into the contract instead of the tenants, he/she would have to have expressly excluded the change of tenants.

Others see no obligation on the part of the tenant to agree to a change of tenant in the mere letting of the flat to several people as a shared flat. This is justified by the different solvency of the contracting parties, i.e. that the landlord/landlady could choose his/her tenants him/herself and would not receive his/her tenants from others. According to this view, the departing tenant remains in the tenancy agreement as tenant and contractual partner - but as a rule the tenant has a right to sublet.

In order to prevent such disputes, a regulation corresponding to the interests is to be included in the contract in any case.

Another problem arises if one of the tenants in the flat-sharing community wants to leave the flat-sharing community and be released "from the contract". This is problematic because the individual tenant cannot terminate the tenancy agreement on his/her own. If all parties agree to the individual tenant leaving the tenancy agreement, the tenancy will continue with the remaining tenants. Difficulties arise if the landlord/landlady refuses to continue the tenancy only with the remaining tenants. He/she is not obliged to change the contract in this

way. In this case, the tenant willing to move out remains as a party to the lease agreement. However, he/she can demand from his/her co-tenants that they agree to terminate the tenancy agreement. This is because the tenant who wants to terminate the tenancy cannot be expected to bear the risk of continuing to be jointly and severally liable for the rent despite moving out of the flat.

However, the opposite case is also possible in that the remaining co-tenant refuses to agree to a change of contract to the effect that he/she is now the sole tenant, despite the landlord's/landlady's consent to the departure of the co-tenant. In this case, the remaining tenant shall be treated in good faith as a sole tenant.