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Old 12.06.2020, 10:54
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Keys handover when no new tenant found

Dear all,


I searched through the forum and couldn't find any thread related to our question.

We move out of our apartment at the end of this month. We couldn't find any new tenant yet (with the crisis nobody wants to move now I guess). According to the contract we have to pay the rent until the end of September if no new tenant is found, which is OK for us (well, of course we'd be more than happy not to have to pay until this date, but we accept the rule). However there are a few points on which we disagree with the landlord.



  • The landlord refuses to organize the keys handover until we have found a new tenant. He says it would free us from our payment obligation. We have already discussed at length around Article 264 (Code of obligations), which says:
1 Where the tenant or lessee returns the object without observing the notice period or the deadline for termination, he is released from his obligations towards the landlord or lessor only if he proposes a new tenant or lessee who is acceptable to the landlord or lessor, solvent and willing to take on the lease or rental agreement under the same terms and conditions.

2 Otherwise, the tenant or lessee must continue to pay the rent until such time as the lease ends or may be terminated under the contract or by law.

3 Against the rent owing to him, the landlord or lessor must permit account to be taken of:

a. any expenses he has saved, and
b. any earnings which he has obtained, or intentionally failed to obtain, from putting the object to some other use.

But we don't understand this article in the same way. "Returns the object" means here keys handover, right? So we understand that the the keys handover is possible and that this does not release us from our obligation to pay.
Who is right ?
  • Besides, in the event that we must continue to pay until the end of September, the landlord asks us to also pay the charges. However, we will not use water or heating after the move... Again, according to the article 264 part 3a, it seems to us that we shouldn't pay for the charges. Who is right?

  • The advertisment published by the landlord indicates a total rent of CHF 20 higher than ours, due to an increase in charges. Is such an increase legal (regarding the obligation to "take on the lease or rental agreement under the same terms and conditions")?

We have read this article 264 in French (our native language), German and English and understand the same in the 3 languages, so it's not a question of language understanding.


Any answer or clarification would be much appreciated!
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  #2  
Old 12.06.2020, 11:34
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Re: Keys handover when no new tenant found

- Nothing weird or strange on handing over the apartment before the lease obligation ends, the moment they have the keys back you are dismissed from all responsibilities (besides paying the bills)

- A rent can be raised if it is according the terms and conditions of the contract you agreed upon, if so you are not dismissed from your obligation to find a nachmieter.
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Old 12.06.2020, 11:36
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Re: Keys handover when no new tenant found

Without knowing the legal background, you seem to have an as*hole landlord...
Could you pay the whole thing at the time of handover till September? So they would have no reason to think you want to "free yourself from the payment obligation".

I am afraid the landlord is right regarding the utility charges. As soon as you have a contract you must cover the NK as well. Obviously whatever is paid based on individual usage won't have any fee. Usually, you get a summary/refund next year.

Increasing the total fee doesn't sound right however, that 20 chf shouldn't make a difference. Btw, did you know about the reference rate change this year? You could apply for a reduction which might make it easier to find a new tenant.
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Old 12.06.2020, 11:43
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Re: Keys handover when no new tenant found

Talk to a lawyer, or swallow the additional cost. You did join the tenant association when you took on the lease, didn't you?

FWIW, I think you're right according to the law you quoted, and the landlord is being a bit silly. But I am not a lawyer.
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Old 12.06.2020, 11:46
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Re: Keys handover when no new tenant found

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Dear all,


I searched through the forum and couldn't find any thread related to our question.

We move out of our apartment at the end of this month. We couldn't find any new tenant yet (with the crisis nobody wants to move now I guess). According to the contract we have to pay the rent until the end of September if no new tenant is found, which is OK for us (well, of course we'd be more than happy not to have to pay until this date, but we accept the rule). However there are a few points on which we disagree with the landlord.

Any answer or clarification would be much appreciated!
Look here and contact them for definitive advice that can be relayed to the landlord... https://www.mieterverband.ch/mv/mietrecht-beratung.html
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Old 12.06.2020, 21:58
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Re: Keys handover when no new tenant found

Yes, you are entitled to hand-over before the end of September (Art. 264 OR is a case of extraordinary early termination), and yes, this means returning the keys.

Yes, you are required to pay the lease until the end of September. With regard to charges it depends on whether they are "pauschal" or "akonto". If they are pauschal I presume you would also need to pay those. If they are "akonto" then they should be reduced, albeit it depends a bit in how they are calculated (if actual use is metered, then it is easy, but if allocated according to size of the appartment...).

No, the landlord does not need to advertise at the same rent as before. In order to obtain the benefit of Art. 264 OR, i.e. a release from your rent obligations, it would be your duty to provide a successor. If the landlord wants to increase the rent/charges he is free to do so.

Should between now and September, the landlord indeed find somone who will rent the appartment, undertake renovations in the appartment (not due to damages caused by you), or indeed use it himself, you would be free from your rent obligations.

https://www.gerichte-zh.ch/themen/mi...mietsache.html
https://www.mieterwechsel.ch/vor-der...tige-rueckgabe
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Old 12.06.2020, 22:19
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Re: Keys handover when no new tenant found

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No, the landlord does not need to advertise at the same rent as before. In order to obtain the benefit of Art. 264 OR, i.e. a release from your rent obligations, it would be your duty to provide a successor. If the landlord wants to increase the rent/charges he is free to do so.
Only if the contract allows so. Else one is freed from the obligation to pay the rent as of the date a nachmieter would take over the old contract.
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Old 13.06.2020, 12:00
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Re: Keys handover when no new tenant found

Many thanks to all of you for all these constructive answers!

As said before it's OK for us to pay the lease until September, if no new tenant is found. We simply don't want to keep the keys after the end of June as we are moving abroad - we don't want to have to come back later to return them, and if anything happens in the apartment while we are away (e.g. water damage coming from the upper floor or break in) we would have no way to know it and can't take the responsibility for such an eventuality. And we simply do not appreciate that the landlord ignores the law and tells us that we understand it the wrong way, although we provide evidence of the opposite.

No, we did not join any Mietverband. And until now we had no problem with the landlord. Since our arrival there have been some small repair works to do (too old roller shutters to change etc) and each time they have been very friendly, responsive and fair play. We are rather surprised to see them react like this now, we don't see any reason to doubt us. I think this is partly related to the fact that their offices are quite far from our apartment and that they certainly do not want to come themselves if someone wanted to visit the apartment after we have returned the keys.

Regarding the charges, we pay in proportion to the area of the apartment, not to the actual consumption.

We heard about the reference rate change only a few weeks ago, unfortunately too late for us. We could have asked for a reduction since years actually. It seems like there is no way for us to benefit from it now, but we do talk about it to the people who come to visit the apartment.
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Old 13.06.2020, 12:45
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Re: Keys handover when no new tenant found



A few question related to the link above, where is written:
Der Ablehnung gleichgestellt sind folgende Fälle:
[...]
Die Vermieterin reagiert auf die Angebote nicht und weigert sich, die Schlüssel zur Mietsache zurückzunehmen. Hier sendet der Mieter am besten die Schlüssel eingeschrieben zurück.

What does it exactly mean here? In our case, can we send back the keys by registered post with proof of receipt? Or does it concern only the case when they refuse to take the keys back AND refuses the applications of potential new tenants (which is not our case, as far as we know)?

If we can send the keys back: then what happens with the inventory we usually do with the keys handover? Can they later blame us for any damage (real or not) in the apartment if no inventory is made?


Thanks a lot for your help!
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Old 13.06.2020, 12:57
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Re: Keys handover when no new tenant found

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...If we can send the keys back: then what happens with the inventory we usually do with the keys handover? Can they later blame us for any damage (real or not) in the apartment if no inventory is made?
I would not just mail in the keys. The handover is your chance to be there and see what the landlord claims is broken, etc. and you can make a record of everything with photographs, etc. at the moment they claim it's broken. You can ask for the meter reading, etc.

If you don't go, it's much harder to fight whatever charges they dream up. As others have suggested, get in touch with Mieterverband. They might not have anyone available to go with you but they should have info that can help guide you in the handover.
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Old 13.06.2020, 14:10
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Re: Keys handover when no new tenant found

As I understand it the owner is refusing to do a hand-over including the keys. Definitely join the Mieterverband, it is not too late. They will have had direct experience of this situation before and are best placed to advise.
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Old 13.06.2020, 19:36
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Re: Keys handover when no new tenant found

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The advertisment published by the landlord indicates a total rent of CHF 20 higher than ours, due to an increase in charges. Is such an increase legal (regarding the obligation to "take on the lease or rental agreement under the same terms and conditions")?
I guess it's legal, if the landlord is looking for someone to start a brand new contract from September onwards. In this case I assume he could ask whatever price he likes.

The landlord has no obligation to look for someone who takes over the existing agreement, because he will be paid until September no matter what.
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Old 13.06.2020, 20:10
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Re: Keys handover when no new tenant found

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I guess it's legal, if the landlord is looking for someone to start a brand new contract from September onwards. In this case I assume he could ask whatever price he likes.

The landlord has no obligation to look for someone who takes over the existing agreement, because he will be paid until September no matter what.
And if OP already has cancelled the contract, the nachmieter either accepts the new terms and conditions per the cancellation date or has to find a new home per that date.

(unless the landlord doesn't bother)
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Old 13.06.2020, 21:13
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Re: Keys handover when no new tenant found

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As I understand it the owner is refusing to do a hand-over including the keys. Definitely join the Mieterverband, it is not too late. They will have had direct experience of this situation before and are best placed to advise.
No, the owner refuses early handover because he assumes that the remaining rent would no longer be due.

That's the key issue, and from what I understand, the only one from the owner's POV.

Apparently it doesn't get through that OP would keep paying the rent until the ordinary end at the end of September. OP needs to make sure this registers (keep the deposit in mind).
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Old 13.06.2020, 23:22
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Re: Keys handover when no new tenant found

We were in a similar situation.

We found a new apartment, but finding a Nachmieter for our old apartment was an impossible thing (the apartment was too old and too pricey).
We were OK with the idea to pay for 2 apartments for 3 months, but asked the landlord for an early hand-over.
The landlord refused us. He told exactly the same things, which your landlord tells (about the payment obligation. And that's not true).
Finally we printed an article from Beobachter and handed it to him. Only then he told, that if he would organize an early hand-over, then find a new tenant and then the new tenant would dislike something, he would have to fix it for the new tenant by himself.
If the new tenant would take the apartment from us and dislike something, we would have to fix it.
I think, your landlord has the same thoughts...
Also, if you will organise an early hand-over, you'll probably be free from paying Nebenkosten, which the landlord also tries to avoid. Now you have to pay Nebenkosten until the hand-over.

We are members of Mieterverband. I'm afraid, Mieterverband will not be able to help you in this situation...

In addition to refusing the early hand-over, our landlord tried to convince us to give him the keys (without the hand-over), so he could show the apartment without us. He also told once that he would like to paint the walls for the next tenant, while the apartment was empty...

Last edited by smb; 13.06.2020 at 23:36.
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Old 14.06.2020, 12:35
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Re: Keys handover when no new tenant found

Thanks again for all the replies!
We have joined a Mieterverband and will see what happens...

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I guess it's legal, if the landlord is looking for someone to start a brand new contract from September onwards. In this case I assume he could ask whatever price he likes.
In the published ad they say the apartment is available from 1st of July.


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We were in a similar situation.
...
Finally we printed an article from Beobachter and handed it to him.
Would you still have this article from Beobachter?
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Old 14.06.2020, 13:50
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Re: Keys handover when no new tenant found

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Would you still have this article from Beobachter?
I found this in my records: https://www.beobachter.ch/wohnen/umz...rmieter-durfen
But the article is not free anymore, it requires an Abo...

And another small article from Mieterverband: https://www.mieterverband.ch/mv/miet...ngsabgabe.html

-------
By the way, there is one more option to hand over the apartment. I'm not sure, if this information is useful or not, but if you have close friends in Switzerland, you can authorize them to hand over your apartment: https://www.immoscout24.ch/de/c/d/im...bergabe?a=1642
But of course I understand, that it's not what you would like to do.

Last edited by smb; 14.06.2020 at 15:24. Reason: additional information
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Old 16.06.2020, 12:36
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Re: Keys handover when no new tenant found

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Thanks for the links.
And many thanks to all of you for your replies.



Now the situation has evolved. They agree (reluctantly) to take the keys back but require us to pay 3 months rent in advance. So they are afraid that we don't pay anymore once we are abroad.


We wonder if there's a way to place this money in a blocked account (more or less like the account where the deposit is blocked), and to release a rent every month. As they don't trust us we are losing trust in them too and we wonder if they will reimburse us the rents if a new tenant is found ... Does anyone know if such accounts exist or if there is any other possibility?

I already asked the question to the Mieterverband but they are overloaded at the moment and they can take up to one week to answer. If we could find some info before they give us an answer, it would be a great help to us, because we are moving very soon.
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Old 16.06.2020, 15:57
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Re: Keys handover when no new tenant found

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...In the published ad they say the apartment is available from 1st of July...
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...Now the situation has evolved. They agree (reluctantly) to take the keys back but require us to pay 3 months rent in advance. So they are afraid that we don't pay anymore once we are abroad.
I'm trying to understand how you're still on the hook until September when the agency is advertising as available in July but they weren't willing to take the keys. Plus they want you to pay the full 3 months in advance. To me, a blocked account seems a reasonable compromise.
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Old 16.06.2020, 16:17
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Re: Keys handover when no new tenant found

either pay it according to schedule, or agree to pay earlier (maybe agree to net off against deposit). paying into a blocked account is just hassle for no reason. the money leaves your account anyway, so who cares if they get it earlier?
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