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Old 03.06.2015, 23:01
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Day Care Kids Island not returning the deposit

Our daughter stayed in the day care Kids Island for more than three years. At the beginning we paid a deposit. End of last year we moved to another place and wanted to quit the day care. The contract says:
Quote:
the exit can take place at the end of a quarter –January 31 / April 30 / July 31 / October 31. With the exit the deposit will be reimbursed if the cancellation period is respected and if the kid has spent more than 12 months at Kid’s Island
We sent our Kündigung end of August asking if it is possible to leave from 01.12 or at least from 01.01. The answer was 'no'.

We proposed them that we find a child - kind of replacement for our daughter. They said earlier termination is possible if the new child fits to the group and the parents sign the contract. They said in that case we don't have to pay for the months when this new child is visiting the day care. They said nothing about the deposit explicitly. Long story short, they admitted the child we found for them from 01.01. When we asked them about the deposit, the answer was - one week later than we asked them, when we obviously fixed the date a new place! - that they are not going to return it because we quit not at the specified time. From our point of view it is nothing but cheating. Actually the contract says only about 'cancellation period' which is three months - and this was respected. And nothing about 'cancellation date'.

We did many attempts to communicate with them, including Betreibung, and ended up consulting Ktipp. They confirmed that we have a right for the deposit. Ok, write back to the day care - they propose 'our' legal consultant to talk to their one. Ktipp consultant is obviously not our personal consultant, I guess they know it. And we don't have any legal insurance yet.

Any advice what to do in our situation without huge time / money investment (I already invested lots of time searching the new child and fighting for my deposit)? I heard there are some legal advice services from the city which are even free under certain conditions. Any hints?
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Old 04.06.2015, 10:48
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Re: Day Care Kids Island not returning the deposit

I am actually not sure I agree with Ktipp. this what you posted: the exit can take place at the end of a quarter –January 31 / April 30 / July 31 / October 31. With the exit the deposit will be reimbursed if the cancellation period is respected and if the kid has spent more than 12 months at Kid’s Island


I know it's not what you want to hear but look at the part in bold/ Italic. I think the notice period was not respected. They let you go earlier but that means you lost the deposit. Whether that's legally possible I am not sure. But if the bit you posted is in your contract then yes it does state a date and it does state a rule about the deposit.
About the "where can you go to": every canton has a free Rechtsberatung. Usually done by the Anwaltsverband. You could go and talk to them. But I would contact Ktipp again. If you are have a paid subcription maybe they would be willing to go and meet the KITA Rechtsvertreter. Most likely they would probably come to a sort of Vergleich which means that you would get some Money but not all.
The days for the Rechtberatung trough the Anwaltsverband can be found here https://www.zav.ch/de/fuer-rechtssuc...tsstellen.html
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Old 04.06.2015, 12:54
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Re: Day Care Kids Island not returning the deposit

Thanks for the answer!

They told me in emails that 'ausserordentliche Kündigung' (earlier exit) is possible if we find a suitable replacement. There is no definition for that in the contract, and I don't find any explanation in a separation of monthly payments and a deposit - either both or none. We would never go earlier if we new that they are not going to return the deposit. They could have said that explicitly. But as you said, legally I don't know what they can do.

They were also sending us the german version of the contract afterwards where it is more clear - there is 'Kündigungsfrist' (three months) and 'Kündigungstermin' (possible exit date), and it says only when both are respected the deposit will be returned. English version, the one we signed, says only about 'cancellation period', which is in my understanding only 'Kündigungsfrist' which was respected.

Anyway, we don't have Ktip subscribtion, so I'll try to follow the link you sent.
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Old 04.06.2015, 14:41
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Re: Day Care Kids Island not returning the deposit

Small correction, the full version of that part of contract:
Quote:
The exit from the group Little Bees / Little Teddys can take place at
the end of a month, respecting the three month cancelation period.
In the kindergarten Little Einsteins and Little stars, the exit can
take place at the end of a quarter – January 31 / April 30 / July 31 /
October 31. With the exit the deposit will be reimbursed if the
cancelation period is respected
and if the kid has spent more than 12
months at Kid’s Island.
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Old 05.06.2015, 12:57
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Re: Day Care Kids Island not returning the deposit

Quote:
We sent our Kündigung end of August asking if it is possible to leave from 01.12 or at least from 01.01. The answer was 'no'.
How can you send a cancellation and at the same time ask for cancel date?

Your kid is a Bee/Teddy?
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Old 05.06.2015, 13:21
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Re: Day Care Kids Island not returning the deposit

She was Einstein at that point. Didn't get your question...
We sent our Kündigung per 01.12.14. The letter was sent end of August. According to the contract the earliest date for Einsteins would be 01.02.15 - but we remembered what we signed at the beginning when she was in Bees, from that group she could exit on 01.12.14. So officially we could not exit, it is clear, but we communicated in the emails that if we find a replacement, we could leave when we like. I've heard often that parents do that, like with the flat rental.
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Old 08.06.2015, 17:28
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Re: Day Care Kids Island not returning the deposit

You said you sent the cancel notice, at the same time asking for when you can cancel. Seems a bit odd to me, hence the question.

I don't understand why you keep mentioning the first-of-month as cancel date. The contract uses last-of-month, which is common here, so if the contract says 31.10.2014 yet you cancel as per 1.11.2014 you cancel on a non-contractual date.

It's not when you sent the cancel notice, but when it could reasonably be expected to have been picked up/received. Since Aug 30/31 was a weekend, if you sent it on friday it didn't arrive until September, and that would have had you disrespect the 3month period. "Express" (very speedy delivery) would probably not have been useful either as administration typically don't work on weekends. With B-Post the cutoff probably was early in that week.
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Old 08.06.2015, 17:44
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Re: Day Care Kids Island not returning the deposit

It is not about sending the Kündigung at the wrong time or in the wrong format... It is a problem of interpretation.

They did recieve our Kündigung per 30.11.2014 (you are right, I was not precise here, but it was correct in the Kündigung), or earliest possible date after that. The letter arrived on time (some days before the end of August) per Einschreiben. The contract says the earliest date would be 31.01.2015. We discussed the situation per email before sending the Kündigung, explaining that we move to another place etc. etc. They wrote that if we find a replacement child they let us go earlier than 31.01.2015 (ausserordinliche Kündigung).
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Old 08.06.2015, 18:44
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Re: Day Care Kids Island not returning the deposit

The point of the deposit is to protect them from lack of income if you leave and don't pay, or to cover the cost of finding a new customer which may also be the justification for the 12 month part.

As you ensured both of these weren't an issue, and they agreed to the earlier leave, I can't see any justification for them keeping the deposit.

I'd suggest going back to them to ask specifically what costs or loss they are retaining the deposit for, since it was them who described it as such.
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Old 09.06.2015, 00:35
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Re: Day Care Kids Island not returning the deposit

Quote:
The contract says the earliest date would be 31.01.2015.
You've just answered your own question

By cancelling as per 30.11.2014 your child had not spent the minimum 12 months with the Hort, therefor they retain the deposit.

Whether retaining it is legal is a different question altogether, that's what lawyers are for.
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Old 09.06.2015, 00:42
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Re: Day Care Kids Island not returning the deposit

Seriously, what is the point writing to the thread if you did not read the original post - the very first line.
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Old 09.06.2015, 01:15
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Re: Day Care Kids Island not returning the deposit

Consider what you wrote, instead of accusing others of misinterpretation. Additionally, drip-feeding is not helpful at all.
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Old 09.06.2015, 07:35
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Re: Day Care Kids Island not returning the deposit

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Our daughter stayed in the day care Kids Island for more than three years.
Drip feed?
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Old 09.06.2015, 08:28
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Re: Day Care Kids Island not returning the deposit

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Consider what you wrote, instead of accusing others of misinterpretation. Additionally, drip-feeding is not helpful at all.
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Drip feed?
Yeah. He whines about that if you don't give him all the facts up front, with absolute clarity. Even if not known to you at the time. It's a shame really, because he does come up with useful stuff most of the time.

@Ekaterina. If the deposit is a few thousand, then a lawyer costing a few hundred might be a good investment. In your place, I'd look at how to take the case yourself (firstly) to mediation, and if that fails, to a judge. That should minimise your costs. Think about how much you're prepared to risk to get the deposit back. If necessary, swallow your pride and walk away. Always think in terms of what you want to achieve and what the costs will be.
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Old 09.06.2015, 08:51
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Re: Day Care Kids Island not returning the deposit

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@Ekaterina. If the deposit is a few thousand, then a lawyer costing a few hundred might be a good investment. In your place, I'd look at how to take the case yourself (firstly) to mediation, and if that fails, to a judge. That should minimise your costs. Think about how much you're prepared to risk to get the deposit back. If necessary, swallow your pride and walk away. Always think in terms of what you want to achieve and what the costs will be.
What NotAllThere said. You have clear grounds to take legal action, which in any case means mediation first, and this means doing a fair bit of homework and will cost a few hundred chuffs if you do it yourselves. DCKI can expect to receive a royal roasting at the Schlichtung, and it will give you an idea of how strong your case is, and whether it's worth taking legal action. After this, you can decide whether or not to risk the expense of a lawyer.

One question: did you sign an English version of the contract, or German? The reason I ask is that German speakers (even so-called legal experts) usually translate the word "Kündigungsfrist" incorrectly, so it is quite possible that the contractual obligations are subtly different between the English and the German versions.

From what you have written, it seems that DCKI may be at risk of being seen as a bunch of thieving cowboys who deserve everything that's coming to them.
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Old 09.06.2015, 09:05
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Re: Day Care Kids Island not returning the deposit

Also, if you have any sort of insurance (Liability - "Haftpflicht" for example) which might include a legal insurance (Rechtschutz) even if in a basic form, it might be useful to consult them.
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Old 09.06.2015, 11:11
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Re: Day Care Kids Island not returning the deposit

Tahnks everyone for answering!
I know that going to the court is not worth it without legal insurance - which I don't have.

We signed the English version I posted. They also showed us the German version afterwards when we already left, there it is much more precise - exactly what Jern says: Kündigungsfrist and Kündigungstermin are both there and everything is more precise. But also according to the german version, our Kündigung was ausserordentliche, which is not defined in the contract.

I was consulting the lawer from Anwaltsverband, they confirmed that my reasoning is fully valid. The idea of deposit is to protect them from parents leaving w/o paying or to cover the time spent on the new search which is not our case (exactly what newtoswitz said). But since they never explicitly said they will return the deposit even if I find the kid, they can point to the contract. So at the end it is interpritation problem and they don't know what the lawer says if we go to the court, and it will cost a lot. If it was about the flat rental, then there are more regulation in Mietrecht, and they could have shown me the relevant chapter protecting my right for the deposit. But they don't know such law for my case - which I find wierd.
They also proposed to go to Schlichtung.

It is a frustrated, since we did enjoy the teaching process there. But when it comes to the administrative issues, it was never smooth, and I don't know any parent who was happy communication with administration.
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Old 09.06.2015, 11:22
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Re: Day Care Kids Island not returning the deposit

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We signed the English version I posted. They also showed us the German version afterwards when we already left, there it is much more precise
Unless the English version you signed explicitely states the German one takes precendence, the German version has no standing. It's quite likely however that it will say something to that effect.
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Old 09.06.2015, 11:26
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Re: Day Care Kids Island not returning the deposit

So how much is the deposit?

Tom
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Old 09.06.2015, 11:32
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Re: Day Care Kids Island not returning the deposit

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Tahnks everyone for answering!
I know that going to the court is not worth it without legal insurance - which I don't have.

We signed the English version I posted. They also showed us the German version afterwards when we already left, there it is much more precise - exactly what Jern says: Kündigungsfrist and Kündigungstermin are both there and everything is more precise. But also according to the german version, our Kündigung was ausserordentliche, which is not defined in the contract.

I was consulting the lawer from Anwaltsverband, they confirmed that my reasoning is fully valid. The idea of deposit is to protect them from parents leaving w/o paying or to cover the time spent on the new search which is not our case (exactly what newtoswitz said). But since they never explicitly said they will return the deposit even if I find the kid, they can point to the contract. So at the end it is interpritation problem and they don't know what the lawer says if we go to the court, and it will cost a lot. If it was about the flat rental, then there are more regulation in Mietrecht, and they could have shown me the relevant chapter protecting my right for the deposit. But they don't know such law for my case - which I find wierd.
They also proposed to go to Schlichtung.

It is a frustrated, since we did enjoy the teaching process there. But when it comes to the administrative issues, it was never smooth, and I don't know any parent who was happy communication with administration.
If you have a good case, then going to court is worth it, because the loser pays the winner's costs. You need to make sure that your Anwalt's costs stay within the cap permitted by the court. I guess that DCKI are would back down if you make a determined show of force.

Have DCKI explicity acknowledged that you fulfilled your part of the deal in finding a child to take your daughter's place?

Interesting that you signed the English version (the German version is irrelevant if you weren't shown it at the time). The English wording you posted only requires you to observe a cancellation period in order to get your deposit back. A period is merely a length of time, and is not the same as a Frist, because a Frist has the additional implication of a termination date. I have yet to meet a mother-tongue German speaker who can grasp this difference.

So, quite apart from the fact that you found a replacement to take your daughter's place, it seems that you also fulfilled the literal requirements of the contract.
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