Asking a flatmate to leave in Germany: what is possible under each contract

First settle who has which contract

In a WG (shared flat) there are three common set-ups: everyone is named in the joint main tenancy, one person is the Hauptmieter (main tenant) and sublets rooms (Untermiete), or each person has their own contract with the landlord. Only in the second case is a flatmate another flatmate’s landlord and able to give them notice. If you want to leave yourself, read giving notice on a room. How the models differ otherwise is explained in the guide to the flat-share tenancy agreement.

Subletting: the main tenant gives notice

A subtenant has, in principle, the same protection against termination as any tenant. The main tenant then needs a legitimate interest, for example if the subtenant seriously breaches their obligations, and has to give at least three months’ notice. If the main tenant lives in the flat too, it gets easier. For a room furnished mostly by the main tenant, there is no protection against termination, and notice can be given up to the 15th of a month to take effect at the end of that month, unless the room is let on a lasting basis to a family or couple. If the room is let unfurnished, the main tenant may give notice without a reason, but the period is extended by three months. The letter must then say that the main tenant relies on this simplified termination.

Joint main tenancy: you cannot throw someone out

If everyone is on the tenancy agreement, everyone is an equal tenant. Nobody can give notice to anybody else, not even a majority of the flat share. The landlord can likewise only give notice to everyone together. A change works only if everyone agrees: the person moves out voluntarily, and the landlord and the remaining tenants agree to release them from the contract. If someone wants out and the others stand in the way, there may in individual cases be a claim that they cooperate in giving notice. That is disputed and a matter for advice.

Individual contracts: only the landlord can give notice

If each person has their own contract, the flatmates have no hold over each other. Only the landlord can give notice, and usually only for a legal reason. The exception is rooms in student and youth halls, where the protection of the legitimate-interest requirement does not apply (§ 549 para. 3 BGB). Immediate termination is possible, for example, if someone is two months’ rent in arrears or persistently disturbs the peace of the house. What you can do: write down incidents with dates and report them to the landlord in writing.

Form and procedure of notice

Notice on a home has to be in writing, meaning on paper with a handwritten signature. Email, messenger or a note without a signature are not enough. For the period to run, the notice has to be received. Hand it over in person with a witness, or send it by Einwurf-Einschreiben (registered post with proof of delivery to the letterbox). State the date the tenancy should end and, for subletting, the reason or the rule you rely on.

What is not allowed

Changing the lock, putting someone’s belongings outside the door or cutting off electricity and internet for a room is forbidden self-help (verbotene Eigenmacht) and can be a criminal offence, even if the notice is valid. If someone does not move out after the period ends, the only route is an eviction lawsuit (Räumungsklage) at the local court (Amtsgericht). If there is violence or threats, call the police. That is something different from a tenancy dispute.

Model: notice to a subtenant

• Sender: name and address of the main tenant
• Recipient: name of the subtenant and address of the flat
• Date: place and day of the letter
• Text: “I hereby give notice to terminate the sublease of the room … with effect from …” (a German-language letter is usual in Germany: „Hiermit kündige ich das Untermietverhältnis über das Zimmer … zum …“)
• Basis: reference to § 573a BGB or § 549 para. 2 no. 2 BGB, depending on the case
• Signature: handwritten
• Written form: signed by hand, not by email or WhatsApp (§ 568 BGB).

If the flatmate does not want to leave

• Talk to each other first, preferably about specific incidents rather than accusations, and write down what you agree.
• With subletting, the main tenant gives notice under the rules above. If the person then does not move out, the only route is an eviction lawsuit at the local court.
• With a joint main tenancy, only an agreement helps: the person moves out voluntarily, and the landlord and all the other tenants agree to release them from the contract (Aufhebungsvereinbarung, a termination agreement).
• Tenants’ associations and lawyers specialising in tenancy law assess the individual case.

Getting rid of a flatmate without a tenancy agreement

• What matters: does the person pay rent for the room or not?
• With rent: a tenancy exists even without paper, with the landlord owing the use of the room and the tenant the agreed rent (§ 535 BGB). Notice is given in writing under the rules above, and the person stays until the period ends.
• Longer than a year: if a tenancy for longer than a year is not concluded in writing, it counts as open-ended (§ 550 BGB). It can then be ended at the earliest at the end of one year after the home was handed over.
• Without rent: if the person pays nothing and gives nothing else in return, it is usually not a tenancy but an unpaid loan of the space (Leihe, § 598 BGB). If no duration was agreed and none follows from the purpose, you can ask for the room back at any time (§ 604 para. 3 BGB). Ask the person in writing to leave and set a reasonable deadline.
• Grey area: whether money for electricity or shopping already counts as rent, and who can demand the return under a joint main tenancy, depends on the case and is one for a tenants’ association.
• If the person stays: in both cases the court is the only route. Changing the lock or putting belongings outside is forbidden self-help (§ 858 para. 1 BGB).

Before it comes to that

Most conflicts can be solved before anyone thinks of notice. Raise problems early and write down agreements, so not every topic is renegotiated. How that works is covered in resolving flatmate conflicts. If it is about money, a shared overview helps, see debts between flatmates. If the move-out is settled, clarify the deposit and open amounts with the moving-out checklist.