The tenant self-disclosure (a pre-tenancy questionnaire) is the most important tool for finding the right tenant before a contract is concluded – and at the same time a delicate one, because it concerns personal data. Landlords want to know whether the rent will be paid reliably; prospective tenants do not wish to be interrogated. The law draws clear boundaries here: only what is genuinely necessary for the decision on the tenancy is permitted. Anyone who asks too much risks data protection breaches and a contestable selection; anyone who asks the right things protects both sides. This guide sets out objectively which questions are permissible, which remain off-limits, when which proof may be required and what happens in the event of false statements.
What the tenant self-disclosure is – and that it remains voluntary
The tenant self-disclosure is a questionnaire with which the landlord, before the tenancy agreement, gathers information on a prospective tenant's suitability – their identity, their ability to pay and the intended use of the dwelling. It is not required by law and is in principle voluntary for the prospective tenant: there is no obligation to provide it.
In practice, however, the disclosure is nonetheless the norm, because the landlord may make their decision dependent on a meaningful self-disclosure. The legal guardrail is provided by the General Data Protection Regulation (GDPR – the EU's data protection law, known in German as the DSGVO): personal data may only be collected for specified, legitimate purposes and only to the extent necessary – the principle of data minimisation (Art. 5 GDPR). Translated, this means: what may be asked is what is genuinely needed for the specific tenancy – nothing more.
These questions are permissible
Permissible are questions that bear a factual relation to the tenancy and that concern financial reliability or the contractually compliant use of the dwelling. These include in particular:
- Name, address, date of birth and contact details for unambiguous identification.
- Occupation and employer as well as the nature of the employment relationship.
- Net income or income circumstances as a measure of the ability to pay.
- Number of people moving in who are to occupy the dwelling.
- Pets, in so far as they are relevant to the use of the dwelling.
- Significant rent arrears from previous tenancies.
- Ongoing insolvency proceedings or a sworn affidavit of means (eidesstattliche Versicherung) that has been given, as these are relevant to creditworthiness.
These points cover what a landlord may legitimately know: whether the person can bear the agreed rent and whether the dwelling will be used in accordance with the contract. Proportionality is key – it is about suitability, not a complete profile of the person.
These questions are impermissible – and why
Impermissible are questions with no relation to the tenancy as well as those that intrude into specially protected data or into characteristics giving rise to discrimination. The yardsticks are the General Equal Treatment Act (AGG – Germany's anti-discrimination law) and the protection of special categories of personal data under the GDPR. Off-limits are in particular:
- Pregnancy, the desire to have children and family planning.
- Religion and philosophical beliefs.
- Party membership and political orientation.
- Ethnic origin, nationality or citizenship.
- Intention to marry and relationship status.
- Sexual orientation.
- Membership of a trade union, tenants' association or clubs.
- Health and disabilities.
- Previous convictions – as a rule, since they are immaterial to a tenancy in the absence of a specific connection.
The reason is twofold: the AGG protects against disadvantage on grounds such as ethnic origin, religion, sex, disability, age or sexual identity; and the GDPR prohibits the collection of sensitive data without a sound legal basis. Such questions therefore have no place in a self-disclosure.
The right to lie in response to impermissible questions
What happens if a landlord nevertheless asks an impermissible question? Here the so-called right to lie applies in practice: a prospective tenant need not answer an impermissible question truthfully, and a deliberately false answer remains without consequences. The landlord cannot later, for instance, rescind or terminate the tenancy agreement because a tenant gave a false answer to the – impermissible – question about a pregnancy. The rationale is compelling: anyone who was not even allowed to collect a piece of information may derive no rights from an incorrect answer.
Conversely, the following applies: permissible questions must be answered truthfully. Anyone who deceives here – for example regarding income or an ongoing insolvency proceeding – must reckon with consequences (see the final section). For landlords, a simple conclusion follows from this: a cleanly designed form confined to permissible questions is not only compliant with data protection law but also the more robust basis for a decision.
Which data, and when? The tiered model of the Data Protection Conference
What is decisive is not only what is asked, but also when. The Data Protection Conference (DSK – the body of the German data protection supervisory authorities) has set out a three-tier model for this in its orientation guidance (DSK-Orientierungshilfe):
- At the viewing appointment: Only basic data such as name and contact details for organising the appointment. Questions about income or creditworthiness, a copy of an identity document or even a SCHUFA enquiry (a credit reference from Germany's leading credit agency) are not yet permitted at this stage.
- Where there is a serious intention to rent: Once the prospective tenant declares a concrete wish to rent a particular dwelling, a pre-contractual relationship arises. Now statements on the number of people, on occupation and employer, on net income as well as on ongoing insolvency or significant rent arrears are permissible – initially as a statement, still without proof.
- Before the contract is concluded (the shortlist): Only after the preselection may proof be required, such as payslips or a targeted credit report.
A common misconception concerns consent: where a legal basis already exists – as with a concrete intention to rent – an additionally signed consent is superfluous and even contestable, because it is given under the de facto pressure of the search for housing. And in the end the duty to delete applies: the data of rejected applicants must be deleted, as a rule at the latest after six months.
SCHUFA, proof of income and freedom from rent debt
Beyond the disclosure itself, proof is customarily desired in the final phase. Here too the principle of data economy applies:
- Proof of income: Customary and defensible are the most recent payslips (in practice up to three). Particulars on them that are not necessary – such as the tax ID, religious affiliation or account details – may be redacted. Submitting the entire employment contract is as a rule not necessary.
- SCHUFA credit report: A distinction must be drawn here. The landlord may not demand the comprehensive self-disclosure under Art. 15 GDPR, as it contains far more data than necessary. Permissible is solely a targeted credit report tailored to the tenancy (such as the SCHUFA-BonitätsAuskunft for landlords) – and only shortly before the contract is concluded.
- Certificate of freedom from rent debt: This is often desired, but it is no foregone conclusion. The Federal Court of Justice (Bundesgerichtshof) has ruled that a tenant has no claim against their former landlord to such a certificate – only to receipts for rent payments made (BGH, judgment of 30 September 2009 – VIII ZR 238/08). A prospective tenant cannot therefore compel a missing certificate, and the DSK takes a critical view of making it a blanket condition.
The line is clear: targeted, purpose-bound proof rather than a blanket flood of data. This is not only legally sound but also fair towards reliable applicants.
False statements in response to permissible questions: the consequences
If a tenant deliberately gives a false answer to a permissible question and this information is material to the letting decision, serious consequences may follow. Two avenues are open to the landlord:
- Rescission for fraudulent misrepresentation (§ 123 BGB – section 123 of the German Civil Code): If the landlord would not have concluded the contract had they known the truth – for instance because of a concealed insolvency proceeding or invented income figures – they may rescind the contract and unwind it.
- Extraordinary termination (§ 543 BGB – section 543 of the German Civil Code): If the deception is so grave that the landlord cannot reasonably be expected to continue the tenancy, termination without notice may come into consideration.
What is always decisive is that the falsely answered question was permissible and genuinely carried weight for the decision. Trifling matters support neither rescission nor termination. This clear distinction – a permissible question with a duty of truthfulness on the one hand, an impermissible question with the right to lie on the other – is the core of a legally sound tenant selection. For the concrete enforcement in an individual case, legal advice is part of the process.
