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Old 14.09.2017, 22:48
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rental agreement

Hi, we had a contract to rent an apartment for 1 year. If we didn't want to continue it for another year we had to let him know by 31 August. On the 30th July we emailed that we cannot extend the lease for another year. We would like it for 2 months if that suited him. He responded no, he can't lease it for 2 more months as he won't find anyone in January. He said if he didn't have a tenant we could stay until he found someone and we would have to decide if we wanted it for another year. Then on the 4th of August we responded.

Thanks for your reply. In that case we cannot renew for another year.

I'll see you on the 10th. Have a safe journey.

When he came back (he lives half the year upstairs) he had a conversation with my husband of sub-letting the apartment but my husband said no. When he was here he put a notice up in the local shop advertising the apartment.

We just received an email that because we didn't let him know by the 31st August he assumes we are taking it for another year, and that's so great because we are nice tenants! Was it supposed to be ON the 31st of August that we let him know, or was it supposed to be posted?
Please help!
By the way, all the other emails were in English, but he did this last one to us in German for some reason. My husband speaks German but does not write it well so the emails have been in English
thanks
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Old 14.09.2017, 22:59
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Re: rental agreement

Email is not considered legally a reliable nor timely means of communications unless he confirms receiving it. If he denies you have no legal stand. Verbal communications are even less reliable - if it comes to a he-says-she-says situation, the one who can back his words with a proof wins - he's got a written contract on you and what have you?

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On the 30th July we emailed that we cannot extend the lease for another year. We would like it for 2 months if that suited him. He responded...
I'd say everything depends on the exact wording in your emails and contract and whether this your email that he acknowledged can be interpreted as expressing a definite desire to not continue the contract

Assert to him that you made it clear with that email that you did not want to continue the contract for another year and see what he replies...
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Old 14.09.2017, 23:05
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Re: rental agreement

thanks, a little stressed...

So, because he didn't respond to the last email he could say he didn't get it.
He has put up an ad though, proves we had the conversation and if he didn't think we were going when was he going to give us notice that he found someone else and we had to move out.
the emails are below, what do you think?

31st July
Hi xxx
At this early stage we are not able to renew the lease for another year. I understand that by not renewing the lease we will have to be out by the end of November, but ideally we would like to have 2 extra months, until the end of January 2018. There is a slight possibility of us staying in Wengen after January if our boys are unable to return to their former school in Australia, but we won't know this until November.
We can talk further about this when you are here in Wengen if you like.

kind regards,

Kris and Julie
ON the 1st of August
Hello Kris

Thank you for your message. Please note, that for us it’s not possible to renew the contract only for 2 months. As you know, if somebody is looking for a apartment, he needs usually to move in, in Dezember, as he starts to work for the winter season in December.
If we would not find a new tenant, you could stay until we found somebody. But this I can’t guarantee you. Therefor you have to decide if you like to renew the contract for an other year or not. Please let me know as soon as possible, that I can start to search for a new tenant.

See you on the 10th of August.
On the 4th of August
Hi xxxx,

Thanks for your reply. In that case we cannot renew for another year.

I'll see you on the 10th. Have a safe journey.

Cheers

Kris
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Old 14.09.2017, 23:15
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Re: rental agreement

You had a contract for one year. If it said "automatische Verlängerung" then you would have had to end it by registered mail.
If it was a fixed contract to one year without automatic prolongation (which it does not sound like and is unusual for apartments) you will have to use the next termination date (which by law normally is 3 months in advance) but not end of December.
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Old 14.09.2017, 23:19
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Re: rental agreement

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At this early stage we are not able to renew the lease for another year.
I think that states clearly enough that you did not want the apartment for another year, unless further negotiations would succeed.

Does your contract prescribe a specific way of how the decision to not extend the contract should have been communicated, such as via a registered mail? If not, I think you have a case.

Send him this excerpt of your email. He acknowledged receiving it and timely by replying to it - he cannot claim not being aware of your intention to not continue the contract.
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Old 14.09.2017, 23:42
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Re: rental agreement

Thanks everyone,
it does say by registered mail, husband has just read that now. He does live upstairs though. Jees. He went to Sardinia on the 25th August and we don't have his address there and told us he would not come back until October 15. The registered mail would have sat in his letterbox for 2 months, which would have been unfair on our behalf if we did that to him, and didn't have all of these conversations! We know he knows we didn't want to stay, we have heard a couple of little things about him around town.

Curley, It would actually work out well for us if we could give 3 months notice after the 1st year as we do need somewhere to stay for the 2 months after this November. We had heard through someone that this was a possibility but would not have done that to him. We had a conversation with him in May saying we didn't think we would sign up for another year and he told us then it was too hard to find someone in January.
Can you recommend how I would find out about legally giving 3 months notice?
thanks so much everyone
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Old 15.09.2017, 00:16
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Re: rental agreement

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Thanks everyone,
it does say by registered mail, husband has just read that now. He does live upstairs though. Jees. He went to Sardinia on the 25th August and we don't have his address there and told us he would not come back until October 15. The registered mail would have sat in his letterbox for 2 months, which would have been unfair on our behalf if we did that to him, and didn't have all of these conversations! We know he knows we didn't want to stay, we have heard a couple of little things about him around town.

Curley, It would actually work out well for us if we could give 3 months notice after the 1st year as we do need somewhere to stay for the 2 months after this November. We had heard through someone that this was a possibility but would not have done that to him. We had a conversation with him in May saying we didn't think we would sign up for another year and he told us then it was too hard to find someone in January.
Can you recommend how I would find out about legally giving 3 months notice?
thanks so much everyone
It all depends on your contract.
Worst case it says "automatische Verlängerung um ein Jahr" (automatically prolonged for one year).
It could also say "Minimale Mietdauer ein Jahr, danach Kündigung x monatlich auf Ende y, z, a" (minimal length of lease one year, after that termination x months ahead to the end of month y,z.a).
If you find none of this in your contract it might be a good idea to contact "Mieterverband" in your area.
You probably won't get out of it by end of December but it should be possible by end of March 2018.
And if worst comes to worst you find a "Nachmieter" (this time send the termination by registered mail!!!).

PS: Let us know about the outcome. Unfortunately people tend to forget to do that here

Last edited by curley; 15.09.2017 at 00:27. Reason: PS
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Old 15.09.2017, 00:19
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Re: rental agreement

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Thanks everyone,
it does say by registered mail, husband has just read that now. He does live upstairs though. Jees. He went to Sardinia on the 25th August and we don't have his address there and told us he would not come back until October 15. The registered mail would have sat in his letterbox for 2 months, which would have been unfair on our behalf if we did that to him,

fair / unfair?

You have a business relation, you're not friends. If he decides to go away and have nobody handling these things for him that is very unprofessional and his problem.

If you would have send a registered mail, it would need an autograph for hm receiving it, and the date he could pick it up at the postal office would have count as the date he received it.

You did not stick to the agreement, and unless you can proof that he accepted a cancellation otherwise or can find somebody willing to take over you are bound to pay rent till next possible cancellation date.
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Old 15.09.2017, 00:31
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Re: rental agreement

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Thanks everyone,
it does say by registered mail, husband has just read that now. He does live upstairs though. Jees. He went to Sardinia on the 25th August and we don't have his address there and told us he would not come back until October 15.
Not a problem. If it was ready for pick up at the post office on August 31st or earlier it is considered delivered. But it may lead to a court case, where the judge may decide otherwise, as there is also another school of thought. AFAIK this question regarding cancellation of apartments sent to a landlord has never been decided. But as the tenant is normally considered the "weaker" party I bet on my view.

Additionally, the law also says that the cancellation must be handed in written and in case of a married couple signed by both partners. Art. 266m Code of Obligations.
https://www.admin.ch/opc/en/classifi...dex.html#a266m
That is either a piece of paper or an electronically signed document using a valid and accept kind of digital signature.
https://www.bakom.admin.ch/bakom/en/...signature.html

Thus, even if we say the clause that registered mail has to be used the default form prescribed by the law was not used.
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Old 15.09.2017, 00:39
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Re: rental agreement

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It all depends on your contract.
Worst case it says "automatische Verlängerung um ein Jahr" (automatically prolonged for one year).
It could also say "Minimale Mietdauer ein Jahr, danach Kündigung x monatlich auf Ende y, z, a" (minimal length of lease one year, after that termination x months ahead to the end of month y,z.a).
If you find none of this in your contract it might be a good idea to contact "Mieterverband" in your area.
If none is stated in the contract than it is by default three month notice period to the usual cancellation dates.
For Berneroberland that could mean to the end of each month except December.
https://www.homegate.ch/mieten/ratge...digungstermine
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Old 15.09.2017, 01:06
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Re: rental agreement

oh yer, it's the worst case scenario, automatisch um 1 Jahr.
Thanks for trying ASwissintheUS
EdwinNL you are right, it should be a professional relationship although his wife hugged us whenever she came back and is lovely. And we had many conversations about moving out.
The contract also states though that he has to give 48hrs notice to inspect the place. A few times he knocked on my door and wanted something. One time it was 8.15am, I was finishing my assignment due that day so no, I hadn't done the dishes or the clothes washing, or packed anything away. :O He had the painter with him and wanted paint from the back room through our apartment and laundry. I asked if I could get it for him instead, no that would not work. I said can I have 10 minutes to clean up as I had an assignment due and hadn't straightened the house up and I would come upstairs and get him. He stood at my front door looking through the glass panel. Anyway, I'm just whining now. It just means we might have to stay in Switzerland another year longer than we wanted We are hoping when we show him the email that he will be understanding. We have not tried to spring anything on him.
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Old 15.09.2017, 20:08
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Re: rental agreement

Me again. Harsh opinions are ok I have found the contract our landlord used on immoscout. I have put red crosses (if it works how I expect) where he has put crosses and also what he added to the contract. We know now that it clearly states to send the notice by registered post. But it says Erstmals kundbar auf den 30 November 2017 and underneath it says Kundigungsfrist and he has crossed 3 Monate. Under point 4 it says if notice not received by 31 August the contract will be extended by 1 year. Do you think we can give 3 months notice after the 1st year (30th November)? Or because it is a 1 year contract we can only ever leave at the end of November of any year?
thanks


3. Mietdauer und Kündigung

 Befristeter Mietvertrag
Der Mietvertrag beginnt am ______________________________ (Datum) und endet am ______________________________ (Datum) ohne Kündigung.

X Unbefristeter Mietvertrag
Der Mietvertrag beginnt am 1. Dezember 2016
Erstmals kündbar auf den 30. November 2017

Kündigungsfrist:

X 3 Monate (Wohnräume)  Längere Frist: ___________________________________________
 2 Wochen (möbliertes Zimmer)

Die Kündigung dieses Mietvertrages durch den Vermieter/ die Vermieterin ist auf Begehren des Mieters / der Mieterin zu begründen (Art. 271 Abs. 2 OR). Die Kündigung durch den Vermieter/ die Vermieterin hat unter Verwendung des amtlichen Formulars zu erfolgen. Die Kündigung durch den Mieter/ die Mieterin hat schriftlich und mit Einschreibebrief zu erfolgen.

Bei Familienwohnung:
Der Mieter / die Mieterin kann den Mietvertrag nur mit der ausdrücklichen Zustimmung der Ehefrau / des Ehemannes kündigen. Der Vermieter muss sein Kündigungsschreiben dem Mieter / der Mieterin und der Ehefrau des Mieters / dem Ehemann der Mieterin separat zustellen.

4. Kündigungstermine:

 auf jedes Monatsende (ausgenommen 31. 12.)
X auf die ortsüblichen Termine*: _Erfolgt per 31. August keine Kundigung, verlangert sich der Mietvertrag automatisch um 1 Jahr.
* Massgebend ist der vertragliche Kündigungstermin. Dort wo im Vertrag kein Kündigungstermin genannt ist, gilt der Ortsgebrauch. Dieser ist, soweit gemeldet, bei den jeweiligen Schlichtungsbehörden aufgeführt.
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Old 15.09.2017, 20:24
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Re: rental agreement

You extended for another year by not cancelling properly in time, the good news however is that you have lots of time to find a nachmieter.
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Old 15.09.2017, 20:31
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Re: rental agreement

You have an open-ended contract that can be cancelled per 30.11.2017, 30.11.2018, and afterwards on standard local cancellation dates - 30.04. and 31.10. in BE. You must give notice at least 3 months in advance before the respective cancellation date on which you want to cancel.

If you want out earlier than 30.11.2018, your only legal choice now is to find a solvent Nachmieter who'd agree to take over your contract as is with its cancellation conditions. In this way, the contract can be passed over at any time without notice.

Quote:
Do you think we can give 3 months notice after the 1st year (30th November)?
No, because of the clause that "der Mietvertrag [verlangert sich] automatisch um 1 Jahr". After this extra year is over, then you can cancel with 3 months notice on 30.04 or 31.10. The clause is a bit clumsy - it talks about extending an already indefinite contract, but my best interpretation of it and your whole ordeal is that the landlord wanted you to commit to another whole year by signing this clause.

Last edited by ivank; 15.09.2017 at 20:51.
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Old 15.09.2017, 20:57
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Re: rental agreement

Thank you for posting.
Here a boiled down version:

Quote:
Unbefristeter Mietvertrag
Der Mietvertrag beginnt am 1. Dezember 2016
Erstmals kündbar auf den 30. November 2017
Kündigungsfrist: 3 Monate
Kündigungstermine: auf die ortsüblichen Termine: _Erfolgt per 31. August keine Kundigung, verlangert sich der Mietvertrag automatisch um 1 Jahr.

The last sentence is very odd and leaves A LOT of room for interpretation.

First of all it says "Unbefristeter Mietvertrag" which means open ended contract. But in the last clause it says it gets extended (verlangert). If it is open ended there is no need for extension.

Then it says "efolgt per 31. August keine Kundigung", per means the same as "auf den". Very strictly speaking it does not say you have to send the termination by that date but you should terminate the contract on that date. Correct would be "erfolgt bis zum 31. August kein Kündigung".

The whole clause also does not say, strictly specking, that after the first possible termination date has passed only November 30 should be a termination date.

Finally, the box that "local termination dates" should apply is ticked. One could interpret that after the first termination date has passed (30. November 2017) you can terminate on any other of the usual dates (observing the 3 month notice period).

Check with the local renter arbitration court which date that means in your case:
http://www.justice.be.ch/justice/de/...-oberland.html
If luckily it means all months except December. Next termination date would be January 31st. This means the termination letter, sent using registered mail, signed by both partners, must be in landlords reach before October 31st.

As said it leaves a lot of room for interpretation. I think you can get out of the contract earlier. Ivan seems to have another interpretation. changed his mind
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Old 15.09.2017, 21:01
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Re: rental agreement

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As said it leaves a lot of room for interpretation.
Not really, it's quite clear from their email exchanges that the real intention of the clause (and that's what counts when text is ambiguous) was to bind the tenant for another year if they don't cancel
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Old 15.09.2017, 21:05
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Re: rental agreement

Thanks so much for taking the time to respond Ivank and ASwissintheUS, you have spelt it out well for me, I really appreciate it
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Old 15.09.2017, 21:17
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Re: rental agreement

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Not really, it's quite clear from their email exchanges that the real intention of the clause (and that's what counts when text is ambiguous) was to bind the tenant for another year if they don't cancel
If landlord wants to play shit, tenant can play shit as well. I would at least use
the free consultation from the arbitration court, present them the contract, and ask how they interpret it.
http://www.justice.be.ch/justice/de/...-oberland.html
and maybe also present it the Mieterverband https://www.mieterverband.ch

I would try all, specially as the situation in the Berner Oberland is not such that you will easily find a replacement tenant.
https://www.bfs.admin.ch/bfs/de/home...l.3402412.html
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Old 15.09.2017, 21:17
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Re: rental agreement

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You have an open-ended contract that can be cancelled per 30.11.2017, 30.11.2018, and afterwards on standard local cancellation dates
Nope. I says August 31st (no year there) so it's every year August 31st or prolonged by a year.

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First of all it says "Unbefristeter Mietvertrag" which means open ended contract. But in the last clause it says it gets extended (verlangert). If it is open ended there is no need for extension.......

...... Finally, the box that "local termination dates" should apply is ticked. One could interpret that after the first termination date has passed (30. November 2017) you can terminate on any other of the usual dates (observing the 3 month notice period)........


As said it leaves a lot of room for interpretation. I think you can get out of the contract earlier. Ivan seems to have another interpretation.
The contract is "unbefristet", meaning if not cancelled prolonged again for a year ..... for ever

The box local termination dates is ticked but there is a special rule mentioned (the yearly thing).
And the preprinted contract clearly states:<<* Massgebend ist der vertragliche Kündigungstermin. Dort wo im Vertrag kein Kündigungstermin genannt ist, gilt der Ortsgebrauch. Dieser ist, soweit gemeldet, bei den jeweiligen Schlichtungsbehörden aufgeführt. >>
So as the landlord DID mention a special termination date, that's what goes.
(If for example you have a work-contract and it says 6 months termination period then OR-rule is out).

This is what we call a "Knebelvertrag" (adhesion contract) I think.
The landlord didn't want to be bothered with this more than once a year, so he set it up like this. It is legal, I'd say, but I still see a chance for OP to get out of it, specially as there was an email exchange and the landlord was not in the country (which was clear to the tenant as a) landlord lives upstairs and b) they have personal contact.
So I repeat: Go see the Mieterverband of your area.
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Old 15.09.2017, 21:24
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Re: rental agreement

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The contract is "unbefristet", meaning if not cancelled prolonged again for a year ..... for ever
No need to mention an extension in an open ended contract. That is "doppelt gemoppelt".

Here a short version which is clear and does not leave any room for interpretation. One could even leave out the first cancellation date, you know "doppelt gemoppelt".

Quote:
Unbefristeter Mietvertrag
Der Mietvertrag beginnt am 1. Dezember 2016
Erstmals kündbar auf den 30. November 2017
Kündigungsfrist: 3 Monate
Kündigungstermine: 30. November.
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