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Old 03.07.2019, 15:55
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Eviction rules of subtenant in ZH

What are the rules and procedure of evicting a subtenant on a fixed 1 year contract that has not paid the rent for 3-4 months? The contract will end in 4 months. The notice period has to be less than 3 months in this case, right?
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Old 03.07.2019, 16:14
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Re: Eviction rules of subtenant in ZH

1. Send registered letter and demand that any outstanding amount must be paid within 30 days (add 5 extra working days for post delivery of letter). State exact date. If date is a Saturday extend it do next day which is a working day. Mention in the very same letter if not paid by the mentioned date, immediate notice will be given. Also cite Art. 257d OR

2. Wait and check if payment is received.

3. If no payment is received by mentioned date (add a few days as banks sometimes are a bit slow) you can cancel by respecting a 30 day notice period to the end of a month. You must use the standard prescribed form available at your cantons rental court. Send the filled in form using registered mail. Be aware that the 30 day notice period only start once the letter is "received". It is received when they eiter sign for the letter or the working day after the postman put the notice in the mail box. Which ever is earlier.

If multiple person signed the contract and are jointly liable you must send the above notices each person individually in a separate letters. If it is a married couple or a couple in registered partnership and only one has signed the contract you must also send the above notices each person individually in a separate letters.

All in all it takes more than 2 months.

In addition you can start the poursuit/Betreibung process right now as the payments are over due by contract.
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Old 03.07.2019, 16:31
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Re: Eviction rules of subtenant in ZH

great, what if they refuse to accept the first registered letter, since it will only be handed out if they agree and sign, or go to the postoffice? postman will not simply put the registered letter into the mailbox?
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Old 03.07.2019, 17:12
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Re: Eviction rules of subtenant in ZH

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great, what if they refuse to accept the first registered letter, since it will only be handed out if they agree and sign, or go to the postoffice? postman will not simply put the registered letter into the mailbox?
The date of the first delivery attempt is relevant. So no smartassing (prolonging their stay by picking up the letter after the last day of a month).
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Old 03.07.2019, 17:16
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Re: Eviction rules of subtenant in ZH

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great, what if they refuse to accept the first registered letter, since it will only be handed out if they agree and sign, or go to the postoffice? postman will not simply put the registered letter into the mailbox?
It is received when they eiter sign for the letter or the working day after the postman put the notice in the mail box. Which ever is earlier. Hence the need to add at least 5 working days to the payment deadline as it must be at least 30 days. Saturday, Sunday, Federal holiday and cantons holiday do not count as working days.

Federal holiday is August 1st.
Cantons holidays can be found here: https://www.bj.admin.ch/dam/data/bj/...-feiertage.pdf
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Old 03.07.2019, 18:45
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Re: Eviction rules of subtenant in ZH

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The date of the first delivery attempt is relevant.
This is not correct, not the date of first offering does count, but the first date at which the letter can be picked up from the postal office. Only if the letter has actually been refused it will on the date of first offering, if people don't open the door or are not home it will be a later day. (can screw one over at the end of the month where instead of Friday, the first date can be Monday since not all postal offices are open on Saturday.

Just use "Einwurfeinschreiben" the mailman wil register that he put the letter in the mailbox and this is legally sufficient and it will count as received at that specific date.

And it should be minded that the date that the letter can be read/picked up does count if the receiver is in the position to actually do so, if somebody is on a holiday for a week than that week does not count and this can easily mean another month of rent.
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Old 03.07.2019, 19:29
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Re: Eviction rules of subtenant in ZH

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And it should be minded that the date that the letter can be read/picked up does count if the receiver is in the position to actually do so, if somebody is on a holiday for a week than that week does not count and this can easily mean another month of rent.
This only applies if the receiver did not had good reason to expect the letter. I doubt that will apply in a case where you are behind with rent payments.

"Einwurfeinschreiben"? This is a German/Dutch thing. I do not see such an option on the Swiss Post website.
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Old 04.07.2019, 09:31
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Re: Eviction rules of subtenant in ZH

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3. If no payment is received by mentioned date (add a few days as banks sometimes are a bit slow) ...
Payments in cash at the Post counter take 2 days, sometimes 3. If you pay on Tuesday, say, the money should arrive Thursday, sometimes Friday.
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Old 04.07.2019, 12:14
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Re: Eviction rules of subtenant in ZH

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This only applies if the receiver did not had good reason to expect the letter. I doubt that will apply in a case where you are behind with rent payments.
Also true, it should not be seen as hiding offc.
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"Einwurfeinschreiben"? This is a German/Dutch thing. I do not see such an option on the Swiss Post website.
Would Track and Trace not be the same?
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Old 04.07.2019, 14:17
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Re: Eviction rules of subtenant in ZH

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Would Track and Trace not be the same?
For letters that would be "A-Post Plus". Didn't know that it exists. It looks like in the past it was available for business costumers only. And there are already several federal court cases about it (but not in rental cases):
https://www.erv.arbeitsrechtler.ch/f...stenfallen.pdf
https://www.bger.ch/ext/eurospider/l...ment&zoom=YES&
https://www.law-news.ch/2017/08/miet...-in-den-ferien

Because of the uncertainty associated with it I would not recommend to use A-Post Plus, but traditional registered post.

Regarding holiday and rental termination see also BGE 4A_293/2016
https://swissblawg.ch/2016/12/4a2932...igung-des.html
The court ruled that being away for holiday, and thus unable to pick up the letter with the notice did not extend the time limit !!! And this was an unexpected notice out of the blue
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Old 04.07.2019, 14:35
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Re: Eviction rules of subtenant in ZH

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...if somebody is on a holiday for a week than that week does not count...
I could be wrong, but I believe this is only true if the person has put the mail on official hold with the Post. If OP's tenant waltzes off for a week and doesn't put the mail on hold, then he/she can't simply claim they were gone and didn't get it. In that case, I think the attempted delivery date is probably also the recorded delivery date.
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Old 04.07.2019, 14:41
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Re: Eviction rules of subtenant in ZH

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For letters that would be "A-Post Plus". Didn't know that it exists. It looks like in the past it was available for business costumers only. And there are already several federal court cases about it (but not in rental cases):
https://www.erv.arbeitsrechtler.ch/f...stenfallen.pdf
https://www.bger.ch/ext/eurospider/l...ment&zoom=YES&
https://www.law-news.ch/2017/08/miet...-in-den-ferien

Because of the uncertainty associated with it I would not recommend to use A-Post Plus, but traditional registered post.

Regarding holiday and rental termination see also BGE 4A_293/2016
https://swissblawg.ch/2016/12/4a2932...igung-des.html
The court ruled that being away for holiday, and thus unable to pick up the letter with the notice did not extend the time limit !!! And this was an unexpected notice out of the blue
I read it as that the renter made the mistake of ignoring the fact that there was a letter he should sign for, and thus let his period to protest expire. would he have gone the next day to the postal office he could have informed himself who send him such letter, and take up contact with the sender to find out what this was all about. Had he done so I think he might have gotten those days (and thus a month extra).

And indeed best is to use a method which has proven itself already as being the regular and reliable method.
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Old 04.07.2019, 14:47
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Re: Eviction rules of subtenant in ZH

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I could be wrong, but I believe this is only true if the person has put the mail on official hold with the Post. If OP's tenant waltzes off for a week and doesn't put the mail on hold, then he/she can't simply claim they were gone and didn't get it. In that case, I think the attempted delivery date is probably also the recorded delivery date.
One should be put in the position to get hold of the letter, if one is on holiday one has not been put in the position to receive the letter. I do not see what putting the mail on hold has to do with this. Also since one has to be put in the postion to get hold of the letter if also does not count on that same date if the letter has been put in the mailbox at 23:45 since it it not to be expected anymore that one empties the mailbox that day, and it is the same reason it counts the date when the letter can be retrieved from the mail office.

As for holiday, offc it has to be proven which often is not that hard to do due to bills/payments. Saying one was in the mountains for a week with a tent and zero witnesses will not hold. And not taking up action to find out who actually send a letter is given the link from ASITU also not valid since one also has responsibilities.
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Old 04.07.2019, 16:38
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Re: Eviction rules of subtenant in ZH

Be aware that if you give some on PoA to receive and sign registered letters during your absence and they sign for a registered letter than it is considered as received! In such a case be sure you get notice of the actual content in a timely manner so you can react properly and without further delay.
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Old 08.08.2019, 10:14
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Re: Eviction rules of subtenant in ZH

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Payments in cash at the Post counter take 2 days, sometimes 3. If you pay on Tuesday, say, the money should arrive Thursday, sometimes Friday.
I once made a payment at a post office that still did it manually. It took 8 days.
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