Main tenancy does not always mean a contract directly with the owner
§ 2 Absatz 1 MRG lists the constellations of main tenancy. These include, alongside certain cases of ownership and usufruct, contracts with the tenant or leaseholder of an entire building. Condominium ownership and its planned establishment are additionally regulated. [VERTRAG]
Therefore the blanket conclusion “The letting person is not recorded in the land register, so it is always a sublet” would be incorrect. Our editorial recommendation: Have the actually claimed entitlement explained and assigned on the basis of appropriate documents. A mailbox name, a handover of keys or a professionally looking form do not alone prove the contractual status.
Map out the concrete chain
§ 2 Absatz 2 describes subletting in the case of a contract with a person not mentioned in Absatz 1. [VERTRAG] For your preparation a clear presentation is initially sufficient: who holds which right in which property and who is offering you which room or the whole flat? The description should remain factual and does not claim to be a conclusive legal examination.
Then clarify the existing permission to use, the actual scope of the offer and the relevant agreements. A main tenancy contract for a flat and a contract for the whole building are not interchangeable evidence. Confidential third‑party contractual data need not be distributed in a disorderly way to all prospective tenants; but decisive information must not be left solely to a reassuring oral statement.
Continuity does not depend only on your own move‑in
The sub‑landlord must, according to § 2 Absatz 2, inform immediately about the termination of his right to use. [VERTRAG] That does not imply a general promise that, upon any termination of the upstream right, you will automatically obtain a direct contract with the owner.
Our practical recommendation: Before agreeing, ask about the known term and any alterations of the upstream contract that have already been discussed. Have it explained how these fit with the duration you are being offered. A long desired sublease is not secured merely because the intermediary landlord later expects an extension of his own contract.
A hypothetical offer with an open condition
In the invented case a person offers Mira her previous flat for several years. She herself is a flat tenant and wishes to live elsewhere permanently. She cannot initially make reliable statements about her own contractual position and any required consent. Mira does not confuse the handed‑over keys with confirmation of all prerequisites.
She first has the proposed contractual route and its duration clarified. Were the person instead a tenant of the entire building, the classification under § 2 Absatz 1 would need to be examined differently from the outset. The example shows the influence of the concrete chain; it neither decides a real contract nor a general permission to re‑let.
Check price and possible circumvention separately
For the relevant area of application § 26 MRG contains rules on the permissible sublet rent, on partial subletting, on fixed terms and on enforcement. [PREIS] It would therefore be wrong to confirm the demanded total amount solely by applying an arbitrary percentage surcharge to an unexamined payment of the intermediary landlord. The applicable framework and the individual cost components must fit together.
§ 2 Absatz 3 also deals with a main tenancy construction to circumvent main tenant rights and the possible recognition as a main tenant under its conditions. [VERTRAG] This particularity does not justify a blanket accusation of fraud against every sublet. Where there are concrete indications, the full facts and suitable advice are required.
Your result before committing should be an understood role with a clarified contractual chain, duration and cost basis. A main tenancy contract is not created merely by a heading; conversely, a genuine sublet should not be signed as if it offered exactly the same legal status without further examination.