Reader question: How do I document the actual rental loss caused after a permissive subletting was unlawfully refused?
The proposed person cancelled because permission was refused. Now the issue is a different decision than before the subletting: whether the landlord must compensate the financial loss caused by that refusal. A mere multiplication of the desired rent and the waiting period does not answer that.
First determine the permission that was actually refused
Put the request, supplements and response together in chronological order. Which person should have used which part of the flat from when? What interest that arose after the contract was concluded was stated? What was to remain with you? Which information was still missing in which reply?
A claim under § 553 BGB requires the appropriate partial transfer of use and the other statutory requirements; conflicting reasons and, where applicable, a reasonable rent increase must also be examined. [BGB553] A refusal alone therefore does not prove a breach of duty. A decision issued later about a different person also does not automatically answer the earlier case.
Use the 2014 decision correctly
In the case VIII ZR 349/13 the landlord had refused an owed permission. The BGH affirmed a claim under § 280 paragraph 1 BGB for the rental loss that resulted from it. The landlord there could not relieve itself by arguing that the legal situation was unclear. The requirements for an excusing legal mistake were strict. [BGH34913]
The judgment is not a promise that full compensation will follow after every disputed refusal. Breach of duty, damage and causation must fit your own case. § 280 BGB also contains the rule on responsibility for the breach (Vertretenmüssen) and distinguishes further types of claims. [BGB280] Have the legal basis for the claim examined together with the entire sequence of events, rather than using isolated sentences from the judgment as a payment order.
Turn an interested party into a documentable period of loss
Secure the actual messages about the planned start, the amount and any conditions. A non-binding initial viewing is different from a concrete, serious willingness to rent. Record when and why the person cancelled. Do not invent a back-dated commitment and do not request a confirmation that goes beyond their statement at the time.
For each period, state what would have happened, according to your account, if permission had been granted in time and what actually happened. Was the person in question still available at all? From when was there another suitable person? From which date was subletting actually carried out? A later delay caused by a completely different circumstance must not be attributed to the first refusal without examination.
A calculation sheet with an open legal assessment
In the hypothetical case a person wanted to use a room for three full months at €420 each. They explicitly cancel because of the refusal. For the third month another subletting at €420 is eventually carried out. The arithmetic initial difference for these three months is therefore €840, not €1260.
Even €840 is only a working figure. The assessment must in particular clarify whether the original claim to permission existed, whether the refusal caused the loss, whether the amount assumed was legally and actually sustainable and whether further deductions are necessary. Payments already received should be taken into account visibly. The current boundary between cost relief and profit-making remains a separate question; the older decision does not grant a present-day permission to realise profit.
Do not let the loss grow with your eyes closed
Document reasonable efforts to limit the loss and report a continuing loss in a comprehensible way. What is required and reasonable in the individual case belongs in legal advice. § 254 BGB takes into account, among other things, omitted mitigation or avoidance of damage. [BGB254] This does not imply an instruction to allow someone to move in without permission or to accept any conditions of an interested party.
For further processing you need a clearly specified claim period, the derived sum, supporting documents and a legal review of the claim requirements. Do not simply offset the self-calculated claim against the next rent. For ongoing loss, refused documents or an imminent deadline the concrete enforcement should be professionally clarified in good time.