New tenant

Only with prior written agreement

There are always cases in which tenants want to terminate the tenancy before the end of the statutory notice period or before the end of a tenancy agreement concluded for a specific period. This is understandable, as nobody likes to pay two rents and the end of the notice period and the new tenancy rarely fall on the same date.

Difficulties often arise here because it can generally be assumed that statutory periods of notice and contractual agreements must be observed.
 

Subsequent tenant clause

As a rule, it is only possible to withdraw from a long-term tenancy agreement (fixed-term tenancy agreement) if it is expressly agreed in the tenancy agreement that the tenant is to be released from the agreement prematurely if a new tenant is found. If necessary, such a provision can also be formulated in writing.

The widespread view that the landlord is obliged, even without such a clause, to release the tenant from the tenancy agreement prematurely if three new tenants are provided is in no way legally justified.

As a precautionary measure, every tenant should ensure that a clause is included in the tenancy agreement that guarantees early release from the contractual relationship if a new tenant is provided.

If a tenancy agreement contains a clause to this effect, the landlord can only refuse a new tenant if, for example, the new tenant is unable to fulfil his obligations under the tenancy agreement due to his financial circumstances or if the landlord's moral or religious convictions would be particularly severely affected.

The mere fact that a new tenant is a foreigner, for example, is not sufficient grounds for refusal. If the landlord rejects a reasonable new tenant, the tenant is exempt from paying rent from the day on which the new tenant would have taken over the flat. The burden of proof lies with the tenant. It is therefore essential that the tenant obtains a written declaration from the new tenant.
 

Exceptions

As always, there is no rule without exception. For example, the landlord must exceptionally release the tenant from the contract early and accept a new tenant if the continuation of the tenancy would mean particular hardship for the tenant. This means that the tenant must have a justified interest in the early termination of the contract and this interest in the cancellation of the contract must outweigh the landlord's interest in the continuation of the contract.
 

• The following situations are conceivable:
• Loss of employment that makes it necessary to move to another city for professional reasons.
• Serious illness or the necessary admission to a retirement or nursing home.
• If the flat has become extremely small due to an addition to the family. In all these cases, however, the particular circumstances must be taken into account and cannot be generalised.

Reasonableness of the new tenant

If the landlord is obliged to agree to a new tenant, he can only refuse a new tenant if there are important reasons in the person of the new tenant, for example if the new tenant is not in a position to fulfil his obligations under the tenancy agreement due to his financial circumstances or if the landlord's moral or religious convictions are particularly seriously affected.