Dear Mods et All,
Please forgive me for posting this here, i know there is a better sub forum for it but significantly more people are viewing this forum than the others. Im in a time critical situation so need as many answers as possible in as quick a time as possible so i figured my chances were better here. Please feel free to move it but if you could leave it here till tomorrow morning, that would be really appreciated! If not, ofcourse, i understand.
Anyway, my question:
I am planning on moving to a place where i will be a sublettee. The person that will be sub letting to me says they will be away for 3 years so that is how long the place will be available for. I have been told by a reliable source that even if my contract states that i am renting for 12 months, for example, that the original renter/subletter can still turn up whenever he wants and make me leave even if it is before my contract of 12 months has ended. Is this correct? I trust the words of the person who told me of this but i would just like a confirmation.
If this is indeed the case, do i have any protections/remedies available to me?
Once again, please accept my apologies for posting this here!
I am not a lawyer, but I understand the following.
As a sub tenant you have the same legal rights as the main tenant. The owner or the main tenant could demand the apartment back, but he would still have to give you the correct legal notice: for an unfurnished apartment or a furnished apartment (the latter is much shorter). You can easily appeal the legal notice, and meanwhile do your best to find somewhere else, but you would not be put out on the street.
For about CHF 70,-- per year you can join the tenants' association and receive free legal help.
In German Kantons: Mieterverband or ASLOCA in French Cantons.
If contract is for a fixed duration, he cannot kick you out whenever he pleases. Contract runs until the end date and cannot normally be prematurely cancelled unilaterally by either side. Note that this applies to you as well - if you wish to move out early, you'll have to pay until the end or find a sucker who'll take over the rest of your term.
Same laws as for ordinary lets generally apply to sublets as well. Contract can be cancelled earlier than contractually agreed due to, for example:
- non payment
- sufficiently important reasons that make continuation of contract unbearable
- death
- sale of the apartment
With one important addition: if main rent contract ends for any reason, your sublet ends with it as well.
You also need to make sure their/your landlord/agency has been informed that the place is being sub-let. From a post by miniMia:
"The tenant has the right to sublease his apartment.
The conditions are that he INFORMS the landlord.
The landlord can only refuse under certain conditions.
De manière générale, la sous-location est tout à fait légale et ne peut être exclue du contrat de location. Néanmoins, le locataire a le devoir d’en informer le bailleur et de lui indiquer les conditions de location. Le bailleur, quant à lui, ne peut refuser que son locataire sous-loue le logement uniquement si cela lui occasionne des inconvénients majeurs ou si le locataire souhaite tirer bénéfice d’un loyer plus élevé."
“In general, the sublease is perfectly legal and can not be excluded from the lease. However, the tenant has the duty to inform the lessor and to indicate the conditions of rental. The landlord, in turn, can deny that his tenant sublets housing only if it causes him major drawbacks or if the tenant wishes to benefit from a higher rent.”
Subletting via airbnb - legal issues? (post 27)
It may be obvious, but maybe not so I'll throw it out there. A written contract isn't necessary but I'd always recommend it in cases of subletting so the terms and conditions are very clear and neither side can take advantage of the other. I know, verbal is legally binding too, but it can get to be he said/she said and a bit of a mess.
+1 for joining Mieterverband as soon as you're here.
You need to be sure that the tenant gets permission from the landlord.
Don't just go on hearsay, insist on all the steps being in writing.
Understand the deal:
You should have a contract, in writing, with the tenant.
It should also specify something about use of the furniture.
Make sure you understand the conditions for termination, by each party, before you sign.
You should also get him/her to give you a copy of the letter of his/her landlord, stating that permission is granted for you to sublet, according to the terms of the attached contract (that's the sublet contract).
Minimise your risk:
If the tenant does not get permission from the landlord, and the landlord subsequently finds out that you are subletting, this is - according to the Tenants' Association (Mieterverband) - sufficient grounds for the landlord to terminate the main rental contract immediately. With that, your contract would fall away, too.
This is a triangle situation, landlord has no contractual relationship with the subrenter thus doesn't care about that contract's conditions.
Essentially the main renter is granting stuff he is not in a position to. Main renter must not cancel the main contract but the landlord is free to act as he pleases within the limits of the main contract, which most probably means at least two cancel dates a year with three months notice period.
Technically, OP might sue main renter in case of an early termination but whether that's worth the effort and risk is another question.
Better not accept such a contract in the first place so either walk away because you found the main renter not trustworthy or use the same conditions as the main contract. But even then the main renter may simply be unable to keep it: If the landlord cancels on the last day of the month it's impossible for the main renter to cancel the subrent on time. So if you accept the amended contract you may want to ask landlord to also send you important letters sent to the main renter, for which you want to request the main renter's written consent as part of your contract. And hope landlord is helpful as again, he has no contract with you.
Up till there, yes. That's why the sub-tenant pays the rent to the tenant, and not to the landlord.
This part, no.
A sublet contract may not include conditions which are grossly different from those of the original contract. The tenant is not allowed to sublet for a higher rent (except a little higher to cover use of any furniture owned by the tenant), nor for use by more people, nor for a noisier or dirtier purpose, etc..
The landlord has a right to ensure that he will suffer no disadvantage, and can withhold permission if this were the case. Some even argue that the landlord has a duty , too, especially towards any other tenants living nearby. Therefore, the landlord does, indeed, care about the sublet contract's conditions.
It is good practice for the tenant to submit the sublet contract to the landlord for written approval, and to supply a copy of that written approval to the sub-tenant, together with the sublet rental contract.
Oh, and make sure your rental deposit is put into a special rental account which can’t be unlocked rather than paying the deposit direct to the tenant. The account will only be unlocked when you or the tenant terminate your contract and you both agree everything’s okay on the moving out inspection.
"[landlord] thus doesn't care about that contract's conditions."
Ok. I meant "doesn't need to care".
Of course correct WRT the maximum 10% surcharge (20% if furnished).
The rest is either incomplete thus misleading or immaterial: It's not "disadvantage" but "material disadvantage". This means, among other things, unusually many inhabintants relative to apartment size and main contract, not relative to actual occupation by the main renter. Likewise for "noisier or dirtier purpose": Immaterial in the sense you imply as the exact same applies to the main renter already.
No more and no less than he did with the main rent already. Looking forward to getting your reference stating the opposite.
In case of damages the landlord will go after main renter regardless of who's the culprit; to the land lord the main renter is responsible exclusively. The Code of Obligations explicitly says so in §262 .3:
"Art. 262 K. Sub-letting
[..]
3 The tenant is liable to the landlord for ensuring that the sub-tenant uses the property only in the manner permitted to the tenant himself. To this end the landlord may issue reminders directly to the sub-tenant."
This from Immoscout24 regarding sub-leasing. I tried to download the contract but was unable to, you will find it at this link.
http://www.immoscout24.ch/fr/c/d/mag...VmDGgJ65PD_BwE
The three reasons
The principal (regie/owner) may only refuse to sublet his property for three reasons:
1. the sublease conditions are not specified Example: The new landlord refuses to disclose the identity of the tenant or to give a copy of the sublease contract.
2. sublet conditions are unfair Example: when the lessor makes profits on subletting.
3. subletting has major disadvantages for the main lessor Example: when the accommodation is occupied by too many people or is used as a rehearsal room for a music group.
Is a written sub-lease contract mandatory?
Yes. As with the usual lease contract, the lease must not be in a particular form, however, all the conditions must be written down before the move in.
What price does the subtenant pay? The rent paid by the subtenant must not be excessive. In the case of subletting a room in a 4-room apartment, the rent must not represent half of the rent.
Tip: If the accommodation is not subleased in full: the rent is calculated per square meter. In addition to rent, it is necessary to allocate the costs and costs of telephone and Internet.
oh looks like it did download after all
Minimise your risk (part 2):
One risk you may face is that the main tenant will not pay the rent. Se what may happen in such a case:
https://www.englishforum.ch/housing-...nt-rights.html
If possible agree that you directly pay the rent to the landlord.
Understand the law:
Please read code of Obligations starting at Art. 253. There are some clause which cannot be overwritten by any contract.
German: https://www.admin.ch/opc/de/classifi...ndex.html#a253
French: https://www.admin.ch/opc/fr/classifi...ndex.html#a253
Italian: https://www.admin.ch/opc/it/classifi...ndex.html#a253
English: https://www.admin.ch/opc/en/classifi...ndex.html#a253
Correct answer is:
No . A written contract is not mandatory. If you are happy with the standard clauses as prescribed by the law you can agree on a price and shake hands. You can even verbally agree on other things. But, in case of a dispute it will be your word against the others w/o any other proof. Second, the landlord has a right to know the details of the subtenant contact. It may be much simpler to give him a paper copy then a oral statement. Finally, the commune may request to see a rudimentary paper statement as well.
In the city of Zurich there is an official template for that:
https://www.stadt-zuerich.ch/content...%c3%bcrich.pdf
From my own experience (nearly) paperless is possible and doable.
WEll, i have managed to get a relatively long notice period put into the signed contract. The sublease seems to be very convienient for the subletter and i have a good feeling about the whole thing. I have had the help of a local who persevered a lot and was very helpful indeed. The expat community here is fantastic!