Anyone looking to move out of rented accommodation at short notice and return the keys must overcome a number of hurdles. Under certain circumstances, it is possible to terminate a lease at short notice. However, there are some potential pitfalls – for tenants and landlords alike. In particular, it can be difficult to find new tenants for expensive lodgings.
These days an increasing number of people move home at short notice, usually for good reasons. A tenant may suddenly be unable to pay the rent because of short-time work. Or perhaps a relationship has ended, they have changed their place of work or have bought their own property.
“We live in fast-moving times,” confirms Fabian Gloor of the Swiss Tenants’ Association (Schweizerischen Mieterinnen- und Mieterverband). He runs the association’s hotline and is well versed in the most common issues relating to tenancy law. He also knows all the legal “hot” topics when it comes to early termination of a lease.
Terminating a lease – the legal requirements
In a nutshell, the following applies: in principle, every tenant is obliged to fulfil their obligations under the lease. Depending on the region and the contract, certain notice periods and deadlines apply. In many regions of Switzerland, for example, it is customary that leases can be terminated at the end of each quarter. In other words, on 31 March, 30 June or 30 September respectively. In most cases, a notice period of three months still applies.
These days, however, removals are increasingly unlikely to take place on the official termination datesFabian Gloor, Swiss Tenants’ Association
The law offers tenants a way to escape their contractual obligations under certain conditions. This right of termination without notice is specifically described in Article 265 of the Swiss Code of Obligations.
Tenants are obliged to inform the rental agency of their intention to move and must find a reasonable replacement tenant by the requested date. The new tenant should be solvent and agree to take over the lease under the existing terms.
In practice, however, there are often certain stumbling blocks, e.g. https://www.newhome.ch/blog/en/renting/early-termination-stumbling-blocks-in-rental-law/ . For example, with the number of vacant rental apartments on the rise again in some regions, it has become increasingly difficult to find replacement tenants. “Some people are desperate,” says Fabian Gloor. As an example, let’s take Markus W. in B.: He did find one or two interested parties who came to view the property. However, they then backed out: “It’s too expensive for me…” was the reason given.
Liability for rent – how long does this last?
Another familiar and similar tale goes like this: the rental agency claims that it will take care of the re-letting for the landlord. However, this may lead to a conflict if the tenant in question fails to sign on the dotted line or there is a delay in concluding a new lease. In this case, the previous tenant risks owing back-dated rent for several months. After all, until the new tenant signs, they will not be formally released from the contract or their obligation to pay. The previous tenant is therefore obliged to cover all rent payments and ancillary costs – possibly until the originally agreed termination date.
FAQs: Early termination
Therefore, it is safe to say that early termination constantly raises new questions for tenants and landlords alike. We have summarised the most common FAQs below along with some possible solutions:
In principle, yes. Swiss law provides for the possibility of an early return of the keys (CO Article 264). You can be released from your rental agreement – regardless of the ordinary termination date. You must find a reasonable and solvent replacement tenant, who must declare in writing that they are willing to take over the lease under the same terms and conditions. The rental agency will then have another two to three weeks to consider the proposed new tenant(s).
Yes. Wherever we have an oversupply of accommodation today, we often see such leases with a minimum term, etc. But here, again, you can terminate the lease without notice – if you can find a replacement tenant. Tip: weigh up your chances of finding an interested tenant before signing the lease – for the same property with the same rent including service charges.
No. The landlord cannot deny you this right. The aforementioned Article OR 264 is prescribed by law – it cannot be changed unilaterally in the contract to your disadvantage.
If several persons are jointly liable for the lease and have signed it jointly, they must also terminate it jointly. The aforementioned early termination procedure is only possible if all the tenants agree to it. They must then also move out together and return the keys. As a lawyer would say: “legal acts are only possible if performed jointly”.
Yes. If you are a subtenant, you have the same rights vis-à-vis the main tenant as in any other tenancy. However, the situation is different if all members of a housing association are joint contracting partners (see above). In this case, the partners can only get out of the contract together, but they also have the option of terminating the contract without notice.
The definition of a reasonable cooling-off period is often a bone of contention between tenants and landlords. A professional rental agency should need no more than two weeks to review the application. For privately arranged tenancies, you will need to allow for a longer cooling-off period – usually around 30 days.
A replacement tenant is deemed reasonable if he or she is willing and able to take over the lease on exactly the same terms. In this case, a refusal would need to be based on objective reasons. Example: the rent would be too high for the replacement tenant. Or it’s a small, two-bedroom flat and the replacement tenant wants to move in with five people. Rejection on the grounds of any external characteristics, such as the tenant’s origin, sex, age, etc. are not acceptable.
You must be able to prove that you have proposed replacement tenants and that they are willing to take over the lease on a specified date. If this is the case, you can move out on this date and return the keys by registered post.
This is a tricky question. We always recommend getting any promises that you will be released from the lease confirmed in writing! You can only be sure of your situation if you have written assurance – for example, that you will be released from your contractual obligations on day X. If you lack any such commitment, you should definitely begin a thorough search for a new tenant yourself! Vague and verbal commitments are always tricky.
In practice, this happens all the time. Maybe the rent is going up, perhaps it’s all moving too fast for an interested party, or maybe the landlord is having second thoughts. From a legal point of view, the following applies in the case of early termination: the date on which a new lease is signed is not decisive. It is, however, crucial that you find at least one new tenant who meets the legal requirements as described above. On the cut-off date, i.e. when the replacement tenant will be ready to move in, you will be released from the contract. In the event of a dispute, however, you would have to be able to prove this. Therefore, always carefully document and copy the commitments made by replacement tenants. The documents relating to the new tenants should be sent to the rental agency by registered post (this also creates an additional paper trail).
Simply referring any interested parties can be tricky. Our recommendation is to keep the interested party’s signed commitment for your own records and then send the documents to the agency by registered post.
Of course, it is important to perform a thorough search. Make enquiries online, ask around among your acquaintances, etc. To reduce the financial impact, consider the option of subletting. If you sublet the flat at a slightly cheaper rate, you could recoup a large portion of your losses. And negotiate with the letting agency, because subletting requires their consent. By the way, Swiss tenancy law recognises the principle of the “duty to minimise damage” – this means the landlord is also required to help out here. For example, by showing a willingness to compromise and also helping with the search for a new tenant.
The legal situation in such situations has been explained above and in another post. In principle, you can assume that the tenant knows the law and has behaved correctly in accordance with Art. 264 CO (i.e. has searched for and found a new tenant). However, since the “duty to minimise damage” also applies to you as the landlord, the following should also be noted: it may be advantageous for you to make the tenant explicitly aware of his or her obligations. Either way, you are well advised to also search for a new tenant yourself. It cannot be ruled out that either the existing or the proposed new tenant is insolvent. Perhaps your debts would not be adequately covered by the security deposit, or a tenant might suddenly abscond abroad, etc. Therefore, it is usually in the landlord’s own interest to play an active role in finding their tenants.
Further information and a sample tenancy agreement can be found here: https://www.newhome.ch/blog/en/renting/tenancy agreement-points-to-consider/