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Old 09.05.2017, 15:42
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Landlord has deterred Nachmieter

Hi all,

Just wanted to sound off and see if anyone has any advice / feedback. After many weeks of searching we finally found a new Nachmieter...or so we thought. They applied three weeks ago and passed the relevant checks as regards finances etc. However the agency then informed me last week they wanted to check the number of pets the family has is OK with the owners (they have two dogs and three cats). A couple of days later they came back and said that while the number is OK, they then insist that the cats be kept inside or in the enclosed garden only. They say that this is a rule that is imposed upon every tenant in the complex but it very clearly is not as we see cats outside around the apartments every single day and there are even apartments which have cat flaps literally built into the windows to allow cats free entry / exit to the apartments.

I messaged the potential Nachmieters and explained this but they told me that the representative from the agency had threatened that they would be evicted if they were found to be breaking this "rule".

My question really then is do they have the right to do this and if so do we still have to find a new Nachmieter? We're leaving the country in 2 weeks and this all seemed to be in place and now for whatever reason the agency has created a huge problem for us financially as we're liable for rent until September or until a new Nachmeiter is found.

All help / advice greatly appreciated!

Last edited by Samweiser; 09.05.2017 at 16:20. Reason: spelling
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Old 09.05.2017, 16:22
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Re: Landlord has deterred Nachmieter

Just to add to the above, there is nothing written in the contract about pets at all, let alone this rule about cats remaining housebound
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Old 09.05.2017, 16:30
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Re: Landlord has deterred Nachmieter

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Just to add to the above, there is nothing written in the contract about pets at all, let alone this rule about cats remaining housebound
Then in this case I think per Art. 264 OR, you're free from any further obligations from the day your Nachmieter would have moved in.

Send a letter by registered mail notifying the agency of this fact and that if they don't sign the contract, it's their responsibility now to find a new tenant, or bear the loss of rental income.
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Old 09.05.2017, 16:31
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Re: Landlord has deterred Nachmieter

Bad luck. I have to agree with ivank. Make sure to have written details confirming the willingness of your chosen nachmieter to move in etc.

Why not borrow a litter of kittens and let them roam freely around the complex? That should get you chucked out pretty quickly.

Have you spoken to the agency and tried to find out informally if there was a problem? Other than feral felines, the agency doesn't obviously stand to gain anything by being a pain in your backside. Perhaps the nachmieter just got cold feet?
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Old 09.05.2017, 16:38
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Re: Landlord has deterred Nachmieter

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Just to add to the above, there is nothing written in the contract about pets at all, let alone this rule about cats remaining housebound
The view of the Mieterverband:

If pets are not mentioned at all then pets are allowed.

If pets need approval then landlord may deny them no reason given.

If the contract refers to the house rules [Hausordnung] then these rules become part of the contract as well. House rule may forbid or limit pets. If the rules say the same as the administration then you are not off the hook and still fully liable according your contract.

https://www.mieterverband.ch/mv/miet...haustiere.html
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Old 09.05.2017, 16:42
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Re: Landlord has deterred Nachmieter

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Then in this case I think per Art. 264 OR, you're free from any further obligations from the day your Nachmieter would have moved in.

Send a letter by registered mail notifying the agency of this fact and that if they don't sign the contract, it's their responsibility now to find a new tenant, or bear the loss of rental income.
Thank you for this! I think I will call the Mieterverband first to confirm this before sending the letter but this gives us hope. It seems utterly unfair to refuse these guys' application (they've now withdrawn it because of this) because of a condition that is not written down anywhere.
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Old 09.05.2017, 16:50
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Re: Landlord has deterred Nachmieter

If the condition is in Hausordnung, it may still be a binding portion of your contract, as aSwissInTheUS says, so check what it says about pets. If nothing like that is there, then I don't think they have a right to reject without having to bear the consequences
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Old 09.05.2017, 17:03
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Re: Landlord has deterred Nachmieter

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Thank you for this! I think I will call the Mieterverband first to confirm this before sending the letter but this gives us hope. It seems utterly unfair to refuse these guys' application (they've now withdrawn it because of this) because of a condition that is not written down anywhere.
It may not be quite as simple as ivank makes out unfortunately. There is a bit of room for interpretation surrounding whether your chosen Nachmieter is zumutbar (suitable) or not.

The Beobachter has a very detailed article on this (in DE)

An example: If you are 70 years old and live in an apartment block with mainly pensioners as neighbours, the Vermieter is well within his rights to proclaim a family with young children 'unzumutbar' to be your Nachmieter.

Interestingly, having young children yourself does not mean that your Nachmieter having young children will automatically be zumutbar. This means it doesn't matter if your neighbours' cats roam the complex (assuming they shouldn't).

Do you have cats/dogs in the apartment currently? If not, the agency may argue that these new pets would disturb the harmony of the complex and as such your chosen Nachmieter isn't a suitable replacement.

Doesn't seem a strong argument though.
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Old 09.05.2017, 17:05
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Re: Landlord has deterred Nachmieter

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The view of the Mieterverband:

If pets are not mentioned at all then pets are allowed.

If pets need approval then landlord may deny them no reason given.

If the contract refers to the house rules [Hausordnung] then these rules become part of the contract as well. House rule may forbid or limit pets. If the rules say the same as the administration then you are not off the hook and still fully liable according your contract.

https://www.mieterverband.ch/mv/miet...haustiere.html
Edit: I've found this seemingly innocuous section right at the end on an additional page after the signatures:

8. Missachtung des Mietvertrags
Werden Mietvertrag und / oder Hausordnung verletzt und bleibt die
schriftliche Mahnung innerhalb der vom Vermieter angeset,ten Frist
erlolglos, so kann dies zu einer KOndigung unter Einhaltung einer Frist
von 30 Tagen auf Ende eines Monats gemass Art. 257 I. Abs. 3 OR
fUhren.

google translate gives me this:

8. Disregard of the lease
If lease and / or house rules are violated and remain
Written reminder within the period set by the landlord
Without success, this may lead to a termination by observing a deadline
From 30 days to the end of a month according to Art. 257 I. para. 3 OR
to lead.

But where are these 'Hausordnung'? If I ask for them now I'm sure they'll include this clause as they'll know why I want to see them, but is there any way I can see the Hausordnung as at the time of our contract?

Last edited by Samweiser; 09.05.2017 at 17:18. Reason: more information
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Old 09.05.2017, 17:17
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Re: Landlord has deterred Nachmieter

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I've just been through the contract again and do not see any reference to Hausordnung but I do see the following, can anyone help me with this section:

Auskunftsbevollmachtigung
Der Mieter bevollmachtigt den Vermieter, Auskunft uber den Zivilstand einzuholen. Die zustandigen Amter werden durch
diesen Mietvertrag ausdrucklich zur Auskunft ermachtigt.
Die "Allgemeinen Bedingungen zum Mietvertrag fUr Wohnraume", Ausgabe 2007 (HEV, SVIT, VZI), bilden einen
integrierenden Bestandteil dieses Vertrags. Die Parteien bestatigen mit ihren Unterschriften, dass sie ein Exemplar erhalten
haben und sich mit dem Inhalt einverstanden erklaren.
Dieser Vertrag ist zweifach ausgefertigt und enthalt aile getroffenen Abmachungen. Jede Anderung oder Erganzung
derselben bedarf zu ihrer Giiltigkeit der Schriftform. Der Vertrag hat erst Gultigkeit, wenn beide Vertragspartner
unterzeichnet haben.
This is bad news I'm afraid:

Quote:
Die "Allgemeinen Bedingungen zum Mietvertrag fUr Wohnraume", Ausgabe 2007 (HEV, SVIT, VZI), bilden einen
integrierenden Bestandteil dieses Vertrags. Die Parteien bestatigen mit ihren Unterschriften, dass sie ein Exemplar erhalten
haben und sich mit dem Inhalt einverstanden erklaren.
-->'The "Allgemeinen Bedingungen zum Mietvertrag fUr Wohnraume", Ausgabe 2007 (HEV, SVIT, VZI) is an integral part of this contract. Both parties confirm with their signature that they have received a copy of this document and agree to abide by its contents.'

The document in question is here: http://www.matthys-immo.ch/media/fil...ietvertrag.pdf


The bad news for you is on page 3:

Quote:
Das Halten von grösseren Haustieren....bedarf der schriftlichen Zustimmung des Vermieters
--> 'Keeping larger pets (such as cats and dogs) is allowed only upon receiving written permission from the landlord'

If you don't have a pet (or haven't got written permission for one from the agency), then you're in a tight spot here I'm afraid.
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Old 09.05.2017, 17:21
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Re: Landlord has deterred Nachmieter

Actually we do have a pet, however it is a dog not a cat and as such no conditions were ever imposed upon us...

It's not looking good by the sounds of it
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Old 09.05.2017, 17:22
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Re: Landlord has deterred Nachmieter

I guess also it depends a little on the size of the apartment, 2 dogs and 3 cats is a lot in an apartment, especially if the cats are indoor cats.....
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Old 09.05.2017, 17:35
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Re: Landlord has deterred Nachmieter

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It may not be quite as simple as ivank makes out unfortunately. There is a bit of room for interpretation surrounding whether your chosen Nachmieter is zumutbar (suitable) or not.
OP says they already OK'd the tenant with all his pets and the only dealbreaker is a condition to keep cats indoor. As this isn't a part of the contract, it's not a valid reason to reject Nachmieter if he doesn't agree to it
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Old 09.05.2017, 17:44
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Re: Landlord has deterred Nachmieter

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OP says they already OK'd the tenant with all his pets and the only dealbreaker is a condition to keep cats indoor. As this isn't a part of the contract, it's not a valid reason to reject Nachmieter if he doesn't agree to it
Yes, I have in writing from the agency that they were OK with the number of pets, but ONLY if they agree to a condition (the cats being housebound) which is not in our contract and was not mentioned before this stage of the process...
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Old 09.05.2017, 17:47
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Re: Landlord has deterred Nachmieter

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OP says they already OK'd the tenant with all his pets and the only dealbreaker is a condition to keep cats indoor. As this isn't a part of the contract, it's not a valid reason to reject Nachmieter if he doesn't agree to it
Not quite. The OP says that:
Quote:
A couple of days later they [the agency] came back and said that while the number is OK, they then insist that the cats be kept inside or in the enclosed garden only.
In my opinion the agency said that cats are allowed IF they are kept inside or in the enclosed garden only.

I think a reasonable person would thus assume that if the Nachmieter doesn't agree to the condition of the cats being kept indoors, then the Nachmieter won't be allowed to bring his cats.
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Old 09.05.2017, 17:54
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Re: Landlord has deterred Nachmieter

I agree this is the case, but are they allowed to impose a new condition like that which is not imposed on others?
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Old 09.05.2017, 18:04
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Re: Landlord has deterred Nachmieter

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I agree this is the case, but are they allowed to impose a new condition like that which is not imposed on others?
The only relevant question (IMO) is whether they are imposing a condition on your Nachmieter which they didn't impose on you.

My understanding is that the condition they are imposing on your Nachmieter is 'the right to refuse/allow larger pets in writing'. As you agreed to this condition when signing the contract, the agency is well within their rights to require your Nachmieter to agree to this condition as well.

I think the only thing that would put you in a strong position is if you had confirmation from the agency in writing that you are allowed to keep large pets in the house. If this confirmation mentions cats (or is suitably vague as for it to be a reasonable assumption that cats are included) and doesn't specify these special indoor conditions, then you may have a point of contention.

Then again, IANAL.
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