Are tenants and landlords allowed to leave their apartments empty? For the former, the matter is clear, for the latter, on the other hand, strict rules apply in some cities – up to expropriation.

Ob Luxury apartments in trendy districts or old buildings in need of renovation, not only in large cities, the windows of some apartments stay dark in the evening. The suspicion quickly arises: the apartment is not being rented out or the tenant hardly ever uses it. But can tenants and landlords simply leave their apartments empty where living space is so urgently needed?

For tenants, the answer is clear: yes. Anyone who rents an apartment is not obliged to move into it. With the lease and the handover of the keys, you acquire the right to use the rooms for residential purposes. In residential rental law, unlike commercial rental law, there is no usage obligation. This emerges from the German Civil Code (BGB, Paragraph 535) and a judgment of the Federal Court of Justice (Az .: VIII ZR 93/10). According to the federal judges, the tenant is free to choose where he “establishes the center of his life and where he lives in the traditional sense (sleeping, eating, regular stay)”. It is up to him whether he stays there permanently, six months or only twice a year.

He can leave the rooms completely empty and store cardboard boxes or put down furniture and household items – as long as these do not emit odors or attract vermin and thus disturb others. To do this, the tenant must adhere to the rules even in his absence. He is obliged to pay the rent plus additional costs and to adhere to the house rules.

If he is assigned to winter service, he then has to take care of someone from a distance to do the work. In addition, the tenant or a representative must ensure that the apartment remains in a proper condition, i.e. to heat it in winter and to inspect the rooms regularly in order to report damage such as mold or vermin infestation to the landlord early on.

Some cities prohibit vacancies – if the period is too long

The situation is different when landlords leave their apartments empty, for example because they have had bad experiences with tenants, are speculating on rising prices or shy away from the costs of necessary renovations. Stricter rules often apply to them. When living space is scarce and expensive, municipalities can impose a ban on misuse.

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You can find it in Berlin, Cologne, Stuttgart, Hamburg and a few other cities. It prohibits vacancies that go beyond a certain period of time – three to six months depending on the city. If landlords do not adhere to this and do not react to warnings, they face a fine, which is usually between 50,000 and 100,000 euros.

In Hamburg and Berlin even expropriations are allowed

The Hamburg Housing Protection Act from 2013 even allows temporary expropriation and forced letting. In the precedent set in early 2017, the Mitte district temporarily withdrew six apartments from an owner, which he left vacant for more than five years; He ignored requests to rent them out and fines.

The apartments were handed over to a trustee who refurbished and rented them out. Only then does the owner get his property back and a hefty bill: he has to bear the costs of the renovation, he remains bound by the new rental contracts. Berlin followed suit in spring 2018. A stricter ban on misappropriation there now also allows temporary expropriation.

However, there are exceptions to the obligation to rent. Landlords need a permit from the responsible district office for this. Those who are currently renovating the property are given longer deadlines, provided that the work is carried out “quickly”. Even owners who want to sell the apartment in the foreseeable future will receive a respite.

If the apartment cannot be rented out because of its poor location, the owner must prove that he has done everything reasonable to find tenants: whether through newspaper advertisements or a broker. If the apartment is too dilapidated to live in without the landlord being to blame, there is also no obligation to rent. However, if he is responsible for the condition of the apartment himself, he may have to make it habitable again at his own expense.