After separation: who can stay in the apartment?

When couples split up, they have to decide who should stay in the shared home.

After separation: who can stay in the apartment?

When couples split up, they have to decide who should stay in the shared home. But the landlord or a judge can also have a say in many cases.

In the beginning there was the tingling in my stomach and the big feelings, in the end disappointment and pain. When a relationship breaks up, it often has organizational consequences as well as emotional ones. If couples used to live together, one of them now has to look for a new apartment. But who can stay?

Anyone who has lived together in rented accommodation without a marriage certificate must pull together again after the separation, says Stefan Bentrop, legal adviser at the German Tenants' Association. "If both are tenants, neither of them has the right to be left alone in the apartment." Only if violence is involved, for example, can the ex-partner be thrown out with a non-violence protection order.

Normally this means that if no one is ready to move out, then nothing moves. The ex-partners have to come to an agreement. And then they have to hope that the landlord agrees to the decision.

"The landlord can insist on his two tenants," says Bentrop. "Because he has more security that the rent is paid. One person alone can therefore not terminate the tenancy." Such a partial termination is only permitted for very few contracts.

If only one person is to move out, in most cases the landlord must therefore agree to release this person from the contract. The remaining tenant must also agree to this. If the apartment owner refuses to agree, the only option is to terminate the agreement together. Some landlords then offer one of the ex-partners a new contract - often combined with a rent increase.

In the case of spouses, on the other hand, the law helps if they cannot make a joint decision about the rented apartment. At the latest at the time of the divorce, the family court will finally decide who is allowed to stay in the apartment.

In this constellation, the landlord must also accept the move out of one of his tenants. "According to the law, the tenancy is transformed by the agreement of the partners or by the judge's verdict," says Bentrop. The spouse who is allowed to keep the apartment becomes the sole tenant, the other spouse withdraws from the rental agreement. This applies even if the spouse who is allowed to keep the apartment was not a tenant before.

And if the ex-partner refuses to leave? Then there can be a lawsuit.

When it comes to owners, the decision is a little different. Most couples each own half of a shared house or apartment. But even if other shares are in the land register: Claims do not arise from this, says Julia Wagner, head of civil law at the house owners' association

Homeowners should, if possible, agree on who is allowed to stay, otherwise this is also a case for the judges. "Then it can even happen that the owners have to sell or auction the property," says Wagner.

Because if you are allowed to stay, you have to pay your ex-partner compensation for his property, similar to rent. "As a result, it can definitely happen that the person staying can no longer afford the house or apartment," says Wagner.

If the real estate loan has not yet been paid off, both are still responsible for the installments. One should also regulate how a partner can be deleted from the loan agreement, advises Wagner.

If previous couples cannot agree on who can stay in the apartment or house, the judges decide. They followed the principle of avoiding so-called undue hardship, says Eva Becker. She is a specialist lawyer for family law and a member of the board of the German Lawyers' Association.

The reason for a decision can be very different. "For couples with children, the partner who takes care of the children is usually allowed to stay there. If only one owner owns the property, that can also play a role."

If there are large differences in wealth, the poorer ex-partner can be less expected to look for a new place to live. Likewise, people with an illness are more likely to receive the right to live if the apartment is tailored to them.

If you want to avoid scrambling for the apartment, you can agree with your partner when you move in who can stay there in the event of a separation. A marriage contract is ideal for married couples. Unmarried couples can protect themselves when buying a property with a partnership agreement.

"For tenants without a marriage certificate, it is conceivable to write a letter that both sign. That then applies at least to their tenant community. But the landlord still has to agree," says Becker.

With such contracts and agreements, one is not immune to everything in the event of a separation. But at least there has already been an agreement.

(This article was first published on Monday, August 22, 2022.)

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