In the case of a jointly concluded rental agreement
Many couples, including unmarried couples, sign a joint rental agreement when they move into the shared apartment in order to create a feeling of equality: both have to pay, both are held responsible for damage and both have to be liable. In addition, one partner cannot terminate the contract alone or on its own – both partners must agree on termination matters. A simple “expulsion” is therefore normally not possible at all, since the expelled partner still has to fulfill contractual obligations and is therefore still the debtor. Expulsion is possible in the case of domestic violence. This must be acute so that the police can expel the violent partner from the apartment.
One way of solving the problem is to agree and move out together – everyone is looking for their own new apartment. Incidentally, case law supports the claim of one partner against the other to execute the joint termination. 749 para. 1 and 705 ff of the German Civil Code stipulate that all partners in a community or company have the right to demand that it be dissolved.
Otherwise, you can also talk to the landlord: in most cases, the landlord agrees that the contract is canceled and a new rental contract is concluded directly with the partner who is staying in the apartment.
If only one partner has signed the rental agreement
You can also talk to the landlord if only one partner has signed the rental agreement. In this case, the landlord is in principle offered a new tenant.
In this case, however, the renting partner has the upper hand: he can cancel the apartment on his own, which means that the non-renting partner also has to move out when the contract expires.
Special rules for married couples
In the event of a divorce or separation of the spouses, there are initially the same options to move out as in the case of the separation of joint tenants who are not married. But: In principle, both partners in an existing marriage have the right to stay in the apartment – regardless of who rents or owns the apartment.
If push comes to shove, during the separation phase, both spouses can apply to the court for the release of the joint apartment, but only with a precise justification such as illness, the financial situation or the well-being of the joint children. The right to apply for the transfer is unlimited in time, but the following applies according to Section 1361b Paragraph 4 of the German Civil Code: Anyone who moves out without returning to the apartment within six months has left the joint marital apartment to the partner who stayed in the apartment. “Moving out” here means if some of the clothing and documents were taken with you – but the property of the partner who has moved out may well have remained in the apartment.
The spouse who has moved out still has the right to move back in – but not without the consent of the partner who stayed in the apartment. He is no longer allowed to enter the apartment without consent.
By the way: If the court decides which of the two spouses is allowed to stay in the apartment or house, the landlord must accept the decision. Moving out due to separation is most unproblematic if it is discussed before the separation or even moving in together who will have to move out in an emergency.
Editorial office finanzen.net
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