What can’t a landlord afford?

Quick overview

• The landlord cannot ban you from routine visits unless it is a person who actually moves into the flat.
• He or she cannot ban you from having a pet unless it causes undue hardship.
• Also, a no-smoking clause in a lease may not be automatically enforceable, but the tenant is liable for damages, odors, or nuisance to neighbors.
• For subletting, it depends on whether the tenant permanently lives in the flat himself.
• At the same time, the landlord must not put manifestly unreasonable obligations in the contract or select tenants in a discriminatory way.

Not sure if your tenancy agreement is in order? Have a solicitor check it before you sign it. You’ll save yourself disputes over the security deposit, notice, pets in the apartment and unreasonable penalties.

How about visits?

The landlord cannot prohibit the tenant from bringing visitors to the apartment. If there is a clause in the tenancy agreement prohibiting the tenant from receiving visitors in the flat, this clause is invalid. The tenant is not obliged to respect the landlord’s contractual or verbal prohibition on visitors and does not have to report the visits to the landlord in any event.

It should be said, however, that in practice it can be difficult to distinguish between a visitor and a person who is a permanent member of the tenant’s household. The line can be quite thin. For example, if a tenant starts dating someone. What was initially an evening visit turns into a weekend visit and then a multi-day visit.

In terms of distinguishing a visitor from a member of the tenant’s household, it is possible to be guided by just how long the person has been in the flat. If the person starts living with the tenant permanently, the landlord’s consent is required.

In practice, we often encounter situations where the landlord refers to ordinary visits by a partner or family as “unauthorised occupation by another person”. However, the decisive factor is not the frequency of the visits themselves, but whether the other person has actually moved into the apartment, has his or her personal belongings there, sleeps there for a long time and uses the apartment as his or her home.

Does your contract prohibit dogs, cats or other pets? Send us the tenancy agreement to check. We will assess whether the ban is enforceable at all and advise you on how to argue if the landlord threatens sanctions or termination.

Can smoking be banned in the apartment?

Every tenant has the freedom to choose to smoke. The landlord has no right to restrict this freedom of his tenants and cannot prohibit tenants from smoking in the apartment. Nevertheless, many landlords often include a no-smoking policy in lease agreements. Only if the smoke coming from the apartment would unreasonably disturb, for example, the neighbours from above, can they demand that smoking be refrained from, for example, on the balcony.

On the other hand, smoking in the apartment can make the apartment smell unpleasant. The landlord can, of course, demand that the tenant restore everything to its original condition and, as part of this, have the sofas, carpets and the whole flat professionally cleaned, for example. Such an obligation in the case of an unpleasant smelling apartment can also be written into the contract. As a rule, the tenant will think twice about taking a few steps outside the house.

And what if the landlord doesn’t like pets?

The Civil Code protects the tenant in this respect. A tenant has the right to keep an animal in the apartment, as long as it does not cause a nuisance to the landlord or other residents of the building that is unreasonable to the conditions in the building. Typically, therefore, an ordinary dog or cat cannot be banned simply because the landlord does not wish it.

The situation is different if the animal destroys equipment, disturbs neighbours for a long time, pollutes common areas or causes increased costs.

Practical experience: the phrase “no pets” in the lease alone usually does not resolve the dispute. What matters is whether the pet is actually causing an undue hardship – for example, repeated noise, odor, damage to the apartment, or increased costs in the common areas. Therefore, the landlord should document the specific problems, not just make a general statement that he or she does not want the animal in the apartment.

If there is a clause in the lease prohibiting the keeping of animals, it is disregarded altogether. The tenant is free to get an animal. This is also true of other unreasonable provisions restricting the tenant.

Subletting

Here the law actually distinguishes between two types of subletting

a) if the tenant lives permanently in the apartment, he can sublet part of the apartment without the landlord’s consent (this does not mean that he does not have to report this fact to the landlord),

b) if the tenant does not live in the flat with the subtenants and sublets the whole flat – he needs the landlord’s consent.

If the tenant allows a third party, for example, a subtenant, to use the property, the tenant is liable to the landlord for the actions of that person in the same way as if the tenant had used the property himself.

Who does the landlord enter into a contract with?

The decision is up to the landlord, but the landlord must not break anti-discrimination law and must ensure equal opportunity for all. Thus, not allowing people such as smokers, pregnant women, students, or people from a certain ethnic group to view the apartment may be discriminatory, and they can then take legal action for damages.

At the end of the tenancy, the tenant must hand over the flat to the landlord in the same condition as when they took it over; normal wear and tear is not taken into account. This means, for example, that the carpets are not like new but used, the sofa or other furnishings are faded, or the paint is dull where it has been used.

In practice: Most post-tenancy disputes arise not because of normal wear and tear per se, but because the handover report and photo documentation have been taken away. If it is not clearly recorded in what condition the tenant took over the apartment and in what condition he returns it, it is difficult to prove later whether it is still normal wear and tear or already damage.

However, the nails in the walls will no longer be ordinary wear and tear and the walls can be considered to have been sealed and painted. The tenant is obliged to carry out routine maintenance of the flat, which includes repairing plaster or wallpapering. Again, it is advisable to set out the regime for such maintenance in the contract.

Whether you’re a tenant or a landlord, it pays to take precautions with your tenancy agreement. We can help you set up a contract that protects your rights, but doesn’t contain invalid or unnecessarily conflicting provisions.

Summary

A landlord cannot arbitrarily dictate to a tenant how to live in an apartment. He or she cannot blanketly ban visitors, common pets or impose manifestly unreasonable obligations just because he or she puts them in the lease. However, a distinction needs to be made between a short-term visitor and a new member of the household in the case of visitors, between ordinary pets and nuisance to neighbours in the case of pets, and between letting part of the flat and effectively handing over the whole flat to another person in the case of subletting. The landlord may also choose the tenant, but may not discriminate. The best protection for both parties is a clear tenancy agreement, a good handover protocol and written communication in any dispute.