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Old 26.10.2016, 17:45
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Misunderstanding with a sublease, advice sought

Hello all,

A curious situation has arisen in my otherwise routine daily life.

I've lived in an appartment since April of this year. For the first 3 months, it was governed by a written sublease: the main tenant went travelling. The sublease contract came to an end but we couldn't organize ourselves to redo the paperwork and nothing happened. I stayed in the apartment.

Three months ago we briefly discussed the situation and said that I would stay until December. The main tenant agreed but we still had nothing written. Learning that as a foreigner, I would need a real contract when renewing my residence permit, I sent a telephone message in early August saying that we should consider an open-ended contract and should discuss the number of months of notice to end it. Radio silence for the next two months.

I became nervous and began to search for an new apartment. Last week, the main tenant finally calls me, we discuss the situation and agree that I will send a new contract by e-mail, possibly open-ended. Amusingly enough, I receive an offer for another apartment beginning November. So I negociated with the new owner, we agreed on an entry mid-November, and I sent a sublease contract to the main tenant of the current appartment with an end date of end November: I thought that this was generous given that no contract forced me to do so.

Now the main tenant pretends that I am responsible for December, wants to return to the 'original' agreement (by which I stay 'until December'), but believes that 'until December' _includes_ the month of December.

I can see this becoming a big headache. I am aware of verbal contracts but I'm not sure that this is considered a verbal contract: the delays in communication were just enormous. My plan is to indeed find someone to whom the main tenant can sublet the apartment but I don't believe that I am obliged to do so, nor that I am responsible for the month of December.

I want to know how to protect myself in case of litigation. Does anyone have any advice?

Thanks!
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Old 26.10.2016, 18:12
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Re: Misunderstanding with a sublease, advice sought

I don't know the law but tell him to take a walk.

Also, as far as I know, until December means "up to" December (meaning you leave end November.)
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Old 26.10.2016, 18:24
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Re: Misunderstanding with a sublease, advice sought

To me it includes December.

"I will be here until Wednesday" to me means that I will also be here Wednesday.

However, I admit that it is a bit ambiguous.

Tom
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Old 26.10.2016, 18:37
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Re: Misunderstanding with a sublease, advice sought

To the OP, as you can see, forums are a great source for legal advice!
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Old 26.10.2016, 18:45
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Re: Misunderstanding with a sublease, advice sought

do until (month="December")
%stay_in_apartment
end


What a nerd.


Do you have any financial liability? i.e. did you pay a deposit?
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Old 26.10.2016, 19:47
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Re: Misunderstanding with a sublease, advice sought

As I understand it, if you stay past the move out date of a limited contract, continue paying like nothing happened, and your landlord silently lets it go like that, this is legally equivalent to concluding a sublet for unlimited duration.

Which by law you may cancel out of your own will only with a three months notice, in case if you're renting the whole apartment. Single rooms need only 2 weeks notice though. You won't be able to prove that you gave such notice now, so I think you got off pretty easy by having to pay just until end of December.

You can still cancel by suggesting an alternative tenant and pay until he takes over, or sublet even further, via airbnb perhaps.
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Old 26.10.2016, 20:48
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Re: Misunderstanding with a sublease, advice sought

Hi there
My understanding is you originally had a time wise limited contract that was mutually extended until (end) of December, this is how most Swiss would read "until December". But my husband actually is a Swiss lawyer, he might be able to help you more precisely if things turn difficult... He can be contacted at www.expatlawyers.ch
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Old 26.10.2016, 21:00
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Re: Misunderstanding with a sublease, advice sought

Blatant advertisement... Isn't avoid lawyers what he wanted in the first place? And if do like a professional advice, I'd start with Mieterverband first, instead of expensive random lawyers

Quote:
I want to know how to protect myself in case of litigation. Does anyone have any advice?
Sublet the apartment further if negotiations fail, airbnb it all off! You've got the right to use it until end of contract, whichever date you both would agree that would be. Use includes subletting too. There are only few formalities like notifying the landlord about it.
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Old 26.10.2016, 21:26
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Re: Misunderstanding with a sublease, advice sought

An unabiguous phrasing would be to stay "until the end of December", i.e. until that end-of-December event happens. So until December would mean leave by end of November. But since I'm not native English this interpretation need not mean much.

Another point is:
Unlimited contracts with monthly cancellation can be cancelled by the end of eleven months only, cancellation as per end of December is not possible. This may not apply to limited contracts, dunno, but it wouldn't make sense to have it run out by end of December because nobody else will cancel their contract by that date, thus OP would be unlikely to find a follow-on apartment. And likewise for the main renter, he'll be unlikely to find someone who wants to move in early in January, much easier to find someone for early December.
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Old 26.10.2016, 21:33
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Re: Misunderstanding with a sublease, advice sought

Thanks for all your responses.

To answer the question of Landers, I have paid no deposit. My concern is primarily legal complications or the dreaded betreibungsregister/registre des poursuites. From my point of view, the main tenant ignored me until we reached a crisis so I really don't want to make this person's life easier. As far as I'm concerned, 'until December' is really until the end of November. I wrote it in French 'jusqu'en décembre' and checked some English and German translations. They agree with me.

However further research tends to confirm the observations of ivank and Belinda: by not renewing the sublease and staying in the apartment, it became an open ended sublease. I can't find exact paragraphs in the law, but several articles say that.

I will of course try to find another person to whom to sublet the apartment. I will also contact the Mieterverband/ASLOCA for further confirmation.

My biggest question is now: what do I do about the normal 3 months notice? If I tell the main tenant 'end November' but pay for December if I don't find a new tenant (I will not admit error in this case), is that enough?

Let this be a lesson to everyone who thinks that they can do things without contracts.
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Old 26.10.2016, 21:45
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Re: Misunderstanding with a sublease, advice sought

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'jusqu'en décembre'
That means until during the month of December, thus NOT until the end of November.

Your French sucks.

Tom
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Old 26.10.2016, 21:48
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Re: Misunderstanding with a sublease, advice sought

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That means until during the month of December, thus NOT until the end of November.

Your French sucks.

Tom
Haha Given that it's my native language, I'm not sure. I'll admit that someone might be confused by it.

"jusqu'en décembre" != ("jusqu'à fin décembre" || "jusqu'à la fin du mois de décembre")
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Old 26.10.2016, 21:54
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Re: Misunderstanding with a sublease, advice sought

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Haha Given that it's my native language, I'm not sure. I'll admit that someone might be confused by it.

"jusqu'en décembre" != ("jusqu'à fin décembre" || "jusqu'à la fin du mois de décembre")
Thus your translation to English sucks.

If I were to say "je serai la jusqu'a mercredi", would I be there Wednesday or not?

Tom
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Old 26.10.2016, 22:07
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Re: Misunderstanding with a sublease, advice sought

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Thus your translation to English sucks.

If I were to say "je serai la jusqu'a mercredi", would I be there Wednesday or not?

Tom
My translation seems to fit the usage.

http://www.linguee.fr/francais-angla...+d%C3%A9cembre

If I say in a conversation, 'je suis là jusqu'à mercredi' or 'je vais être là jusqu'à mercredi' (I wouldn't use the real future tense), the context plays a role. For example, a hotel: I would check out on Wednesday morning... but not stay in the hotel _for_ Wednesday.

My wording was ambiguous and shouldn't be used in a legal document. Of course, that's the problem. It wasn't a legal document.
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Old 26.10.2016, 22:11
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Re: Misunderstanding with a sublease, advice sought

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My translation seems to fit the usage.

http://www.linguee.fr/francais-angla...+d%C3%A9cembre

If I say in a conversation, 'je suis là jusqu'à mercredi' or 'je vais être là jusqu'à mercredi' (I wouldn't use the real future tense), the context plays a role. For example, a hotel: I would check out on Wednesday morning... but not stay in the hotel _for_ Wednesday.

My wording was ambiguous and shouldn't be used in a legal document. Of course, that's the problem. It wasn't a legal document.
But, then you agree that you would be there Wednesday.

Thus, the crux of the problem.

Tom
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Old 26.10.2016, 22:16
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Re: Misunderstanding with a sublease, advice sought

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But, then you agree that you would be there Wednesday.

Thus, the crux of the problem.

Tom
I know that you're trying to be smart but I'll repeat that the context plays a role. In the example of the hotel, I pay for Tuesday night and not for Wednesday (day). And in the context of a rental agreement, I understand until December _not_ to include December. Some will disagree.

My legal responsibility is based probably not on the wording of the conversation, but rather on the fact that I stayed in an apartment without a contract. That responsibility is what I am trying to determine.
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Old 26.10.2016, 22:21
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Re: Misunderstanding with a sublease, advice sought

In short, you need a lawyer.

Tom
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Old 26.10.2016, 22:41
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Re: Misunderstanding with a sublease, advice sought

For what it's worth to stay until December I would understand that to mean the 1st of December.

How did you pay your rent when you moved in? Did you pay for the 3 months in a lump sum or did you pay per month? The reason I ask is maybe it could be seen as a continued rolling contract either month by month, or 3 month by 3 month, until you clarified in writing with him what was happening after the initial 3 month contractual period. However, that said, there is nothing in writing to stipulate the end of December, you had no formal agreement.. so he hasn't anything to go on other than to continue to moan and badger you into paying until the end of December. Why should it be your total responsibility here; he should have been clearer regarding the terms and put it in writing after the initial rental period and agreement was over.

I don't think he has a leg to stand on.

I would argue all this and inform him you will be receiving legal clarification from the Mieterverband regarding your rights.

And.. if you want to really want to get out from under this quickly and cleanly, advertise the room now for the 1st of December, show the room/apartment and get interested parties to fill out a form with their contact details on, keep the originals and send him copies. Move out and leave him to it.
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Old 26.10.2016, 23:09
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Re: Misunderstanding with a sublease, advice sought

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My biggest question is now: what do I do about the normal 3 months notice?
3 months notice shouldn't matter to you now and would only make things much worse to you if you go that route. As Urs Max further pointed out, standard 3 months cancellation is possible only at a few location-specific dates per year, not at every month's end.

You've already got your landlord as far as to admit that there existed a mutual verbal agreement that you'd stay "until November". Mutual agreements can overrule any earlier agreements/contracts. And verbal agreements are binding, the difficult part that prevents enforcing them usually is lack of proofs - but you hopefully now have at least an email from your landlord admitting that such an agreement existed, so this isn't an issue anymore.

An open question is just the interpretation of the agreement: is it 30.11 or 31.12... I'd personally take his interpretation of 31.12, and just sublet the apartment further for a month as I've kept suggesting and keep the profits. He can't legally completely refuse subletting. Worst case, he can put a limit on how much extra profit you'd be allowed to derive from it.
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Old 27.10.2016, 00:16
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Re: Misunderstanding with a sublease, advice sought

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My legal responsibility is based probably not on the wording of the conversation, but rather on the fact that I stayed in an apartment without a contract. That responsibility is what I am trying to determine.
You have a contract. A verbal one. Still a good contract afterall. As you did not specify any further detail the default laid out in the law (Swiss Code of Obligation, here a link to the relevant part in English s https://www.admin.ch/opc/en/classifi...ndex.html#a253) comes into force.

Two views:
1) Your contract is still open ended, means at least 3 month notice period, only to local moving dates (City of Zurich, End of March and End of September), or need to find a replacement tenant. Also 3 month is the minimum, contract is only allowed to have a longer notice period.

2) Your contract is not open ended and only "until December". I would say most people will interpret this as "until end of December". Also in German "bis Dezember" would mean "end of December".
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