Transferring a tenancy: subletting and transfer

What happens if you have rented a home and want to hand it over to another person, or want to travel for six months and would like to sublet? The Rent Act closely regulates when and how a tenancy can be transferred or sublet. Many tenants do not know these rules and risk losing the right to the tenancy.

This guide explains the rules for transferring and subletting a tenancy in Denmark.

Transfer vs. subletting: what is the difference?

A transfer of a tenancy means the tenant's rights and obligations are transferred in full to a new person. The current tenant leaves the agreement, and the new tenant takes over.

Subletting means the original tenant keeps their contract with the landlord but lets another person (the subtenant) live in the home, typically for a period. The original tenant remains responsible to the landlord.

The right to sublet: when may a tenant do it?

Subletting part of the home (section 157 of the Rent Act)

A tenant as a rule has the right to sublet at most half of the home's residential rooms if:

• The tenancy is a house or a flat
• The total number of residents does not exceed the number of residential rooms
• The tenant gives the landlord written notice of the sublet

The landlord can oppose the sublet on reasonable grounds, for example if the number of residents would exceed what is reasonable relative to the size of the home.

Subletting the whole home during a temporary absence (section 158 of the Rent Act)

A tenant of a residential flat has the right to sublet the whole flat for up to 2 years when the tenant is temporarily absent because of illness, a business trip, a study stay, a temporary posting or the like:

• A work or study stay
• Illness-related absence
• A temporary posting

The tenant must notify the landlord of the sublet. The landlord can oppose the sublet, among other things if the number of residents in the property would thereby exceed what is reasonable, or if the landlord otherwise has a reasonable reason.

Terms of the sublet

The sublet is governed by a sublet agreement between the original tenant and the subtenant. The agreement should contain:

• The address and description of the home
• The sublet period (start and end)
• Rent and deposit
• The division of consumption costs
• Terms for handing the home back
• Who is responsible for damage

The rent requirement: the subtenant may as a rule not pay more in rent than corresponds to the original tenant's rent for the sublet part. Charging a significant overprice (illegal subletting) is unlawful.

Transferring a tenancy

An actual transfer, where the current tenant leaves the agreement and a new tenant takes over, as a rule requires the landlord's consent, unless it is one of the statutory cases below.

Continuing the tenancy on death

If the tenant dies, a spouse, cohabitant or member of the household has, under certain conditions, the right to continue the tenancy. The conditions include that the person shared a household with the tenant in the home and wishes to continue the tenancy. The landlord can as a rule only oppose it if there are weighty reasons.

Separation and divorce

On separation or divorce, one of the parties can take over the right to the tenancy, even if only the other party is named as the tenant. The right is typically agreed as part of the separation or divorce terms.

Exchanging flats

Under certain conditions, a tenant has the right to exchange flats with another tenant. The rules are in the Rent Act.

Cooperative housing

Cooperative members own a share, not a tenancy, and the transfer of the share is governed by the Cooperative Housing Act and the association's bylaws, including any rules on priority for family.

Commercial leases and transfer

For commercial leases, the Commercial Lease Act applies. Here the tenant only has a right of assignment (a right to transfer the lease to another business) if it is agreed in the lease; it does not follow automatically from the law. If a right of assignment is agreed, the landlord can typically oppose the transfer if the new tenant is not sufficiently sound or does not run a suitable business.

Unlawful subletting: consequences

If a tenant sublets or transfers the tenancy without a lawful basis or the landlord's permission, the tenant risks:

1. Cancellation of the tenancy: the landlord can require the home to be vacated (typically after a warning)
2. A damages claim for damage caused by the subtenant
3. The loss of the rights that came with the tenancy

The original tenant is liable to the landlord for the rent and for damage caused by the subtenant.

The sublet agreement: what should it contain?

A sublet agreement should as a minimum state:

• The address and a description of what is being sublet
• The start and end of the sublet period
• The monthly rent and payment term
• The deposit and conditions for repayment
• Rules on furnishings and movables
• The parties' responsibility for damage and wear
• Termination terms

Frequently asked questions about transfer and subletting

Can the landlord ban all subletting in the contract?

No. The statutory rights to sublet (for example half the home or subletting during a temporary absence) cannot be waived in the lease. Contract terms limiting these rights to the tenant's detriment are invalid.

What happens to the deposit on a transfer?

On the transfer of the tenancy to a new tenant, the deposit should be handled separately: the new tenant can pay a new deposit, and the old tenant is entitled to repayment of their deposit on moving out, unless the parties agree a direct transfer.

Can the subtenant terminate the sublet?

Yes. The subtenant is bound by the terms of the sublet agreement, including any termination rules, and cannot move out without the agreed notice.

May I let my rented home via Airbnb?

Short-term letting via Airbnb is subletting. It as a rule requires the landlord's consent, and local rules may apply (for example municipal limits). Unlawful short-term letting can lead to cancellation of the tenancy.

What are the original tenant's duties during the sublet period?

The original tenant remains a party to the lease and is liable to the landlord for the rent and for damage caused by the subtenant. It is a real risk you should be aware of.

Conclusion

Subletting and transferring a tenancy are well regulated in Danish tenancy law, but it is only lawful within the law's limits. Know your rights and obligations before you enter a sublet agreement. Always draw up a written sublet agreement, and give the landlord notice of the sublet.

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The content of this article is for guidance only and does not constitute legal advice. Consult a lawyer or a tenant organisation for advice on your specific situation.