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Old 25.09.2020, 18:46
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Minimum length of rental contract - surprise

I'm about to sign a rental contract with two other main tenants. I knew the usual moving-out dates are 31 March and 30 September, with the notice periods of 3 months.


However, I have been surprised by the statement of the contract:
"the lease cannot be broken before 31 March 2022"


I have a student B permit until September 2021, in the Zurich canton.

Most likely, I cannot be employed here except as a PhD student, so I don't even know whether I will have a permit to stay in Switzerland after September 2021.


Is it easy to replace myself in the case I cannot/don't want to live there anymore?

For example, finding a new tenant, or subletting?
I cannot afford to pay 6 more months of rent if I move out of Switzerland.





The apartment is on the cheaper side (~550 chf/mo for a room), but the location is not great (~30 min to Zurich HB).
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Old 26.09.2020, 12:06
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Re: Minimum length of rental contract - surprise

Finding someone to take over your room should not be a problem, just make sure you start the process early enough.
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Old 26.09.2020, 12:20
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Re: Minimum length of rental contract - surprise

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I'm about to sign a rental contract with two other main tenants. I knew the usual moving-out dates are 31 March and 30 September, with the notice periods of 3 months.


However, I have been surprised by the statement of the contract:
"the lease cannot be broken before 31 March 2022"


I have a student B permit until September 2021, in the Zurich canton.

Most likely, I cannot be employed here except as a PhD student, so I don't even know whether I will have a permit to stay in Switzerland after September 2021.


Is it easy to replace myself in the case I cannot/don't want to live there anymore?

For example, finding a new tenant, or subletting?
I cannot afford to pay 6 more months of rent if I move out of Switzerland.





The apartment is on the cheaper side (~550 chf/mo for a room), but the location is not great (~30 min to Zurich HB).
You can leave earlier (meaning no need to sublet) provided you find a new tenant, but as mentioned before, start looking for a new tenant at least 3 months earlier than your planned move.
I wouldn't worry if the rent is reasonable and the location is relatively good.
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Old 27.09.2020, 19:47
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Re: Minimum length of rental contract - surprise

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I'm about to sign a rental contract with two other main tenants.
Personally I'd be very hesitant to sign that contract.

Even though you probably agree to pay one third of the rent each, or something similar, each of you can be held responsible for the entire rent.

Assume for a minute that one of your trio decides to no longer pay the rent but stays in the apartment. The other two can't lawfully change the locks to keep that 3rd guy out (though you may decide to ignore legalitites and do so anyway) yet both can get chased by the owner/agency, be that for the outstanding third of the rent only or the entire amound, and will have to pay. Unless that 3rd guy agrees to give notice, and signs the notice, you need a judicial verdict to get out of the contract.

Now, usually everything works out very fine, I'm just playing advocatus diaboli. I believe you should be aware of the pitfalls though.

Legally, your trio forms what called a "einfache Gesellschaft". In order to be able to leave unilaterally, without either or the other two having veto power, you'd need to set up a contract defining your corporation and giving each that option.
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You can leave earlier (meaning no need to sublet) provided you find a new tenant, but as mentioned before, start looking for a new tenant at least 3 months earlier than your planned move.
I wouldn't worry if the rent is reasonable and the location is relatively good.
That only applies if all three want to leave. In such a case the three are out of the contract if they can present a suitable follow-on renter, just as you say. However, if only one (or two) of the trio decides to move on, and absent explicit contractual arrangements saying something different, the remaining two (or one, if two want to leave) have veto power and can keep the leaver(s) in the contract. That's the same situation as a couple in a shared apartment that want do dissolve the relationship: the one who wants to leave is screwed if the other play asshole and refuses to give their Ok.

-----------------------------------

As for 1.5 years minimum duration: that's not unheard of. But as OP needs a shorter one, they should negotiate with the owner/agency.

Last edited by Urs Max; 27.09.2020 at 20:01.
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Old 28.09.2020, 14:14
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Re: Minimum length of rental contract - surprise

Does this "all can be held liable, no one moves out without consent of other signees" thing hold even after the minimum length of the contract?
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Old 28.09.2020, 14:44
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Re: Minimum length of rental contract - surprise

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Does this "all can be held liable, no one moves out without consent of other signees" thing hold even after the minimum length of the contract?
I think it might. Our contract includes a clause that says it rolls from month to month after the initial period unless we give notice.

Mr Wishes can't get out of the lease unless I sign off too. He can vanish and leave me on the hook for the money though. If he decided to move out and disappear tomorrow, I'd be on the hook for 100% of the rent because I'm a co-signer on the lease. I'd then have to go after him for his portion owed.

Agree with others to proceed with caution.
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Old 28.09.2020, 15:02
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Re: Minimum length of rental contract - surprise

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If he decided to move out and disappear tomorrow, I'd be on the hook for 100% of the rent because I'm a co-signer on the lease. I'd then have to go after him for his portion owed.
.
Not only rent but also electricity and utilities, garage, fixed line phone etc

Yeah, I didn't take situations like this consideration, in the vast majority of cases things go well. Even when one of the spouses/partners decide to break up and one of them is moving.

Maybe the best solution for OP is to look for an individual apartment or studio if he's very scared of risking anything but I don't know....you have to trust people a little. (imho)
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Old 28.09.2020, 15:54
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Re: Minimum length of rental contract - surprise

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Does this "all can be held liable, no one moves out without consent of other signees" thing hold even after the minimum length of the contract?
Yes.

You will have two contracts even though you sign only one. One is your rental contract; by signing this as a trio (the number doesn't matter as long there's more than one) you establish an Einfache Gesellschaft with all three being a member, which is the second. You could make the contract time-limited, in which case it would automatically and unconditionally end at date xyz, but that creates the problem of finding a new place when it ends (or hope that the agency/owner accepts you a 2nd time - but what if Peter wants Tom to move out?).

It may help to buy the renters association brochure on the topic. See "Gemeinsam Wohnen / Untermiete". I haven't read it so I can't say with certainty that it's good, but I'd be very surprised if you regret the purchase.

I also strongly recommend becoming a member of the renters association. At least one of you three. Also, see what other info they publish on their website.
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Yeah, I didn't take situations like this consideration, in the vast majority of cases things go well. Even when one of the spouses/partners decide to break up and one of them is moving.

Maybe the best solution for OP is to look for an individual apartment or studio if he's very scared of risking anything but I don't know....you have to trust people a little. (imho)
Definitely, hence the "me advocatus diaboli". But OP should be aware of the pitfalls, all three will gain from it.
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Old 28.09.2020, 21:33
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Re: Minimum length of rental contract - surprise

Thank you, we will just sign a separate contract between ourselves.
It will make the moving-out dates clear, i.e. when someone wants to move out / find new tenant / whatever, others must not prevent it, given that they respect the time.


1. What should we do with the contract so it has legal standing in Switzerland?


2. Can we, alternatively, make all contracts between ourselves auto-destruct on 31 March 2022, except if we all sign something saying otherwise before that?
(The reason is the following: we all have no income now. In a year and a half, each one of us will either have income, or will be out of Switzerland, by virtue of not being allowed to stay here.)


3. Is there any comprehensive source in English on the Einfache Gesselschaft we will be signing, except https://www.kmu.admin.ch/kmu/en/home...rtnership.html? It says almost nothing.

Last edited by mdkoki; 28.09.2020 at 21:57.
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Old 28.09.2020, 22:34
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Re: Minimum length of rental contract - surprise

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Thank you, we will just sign a separate contract between ourselves.
It will make the moving-out dates clear, i.e. when someone wants to move out / find new tenant / whatever, others must not prevent it, given that they respect the time.
You miss one very important thing: The rental contract is between the landlord/rental agency on on side and the simple partnership with the purpose to rent a flat consisting of the named tenants #1, #2, and #3 on the other side.

The landlord can only cancel the flat respecting the legal and contractual cancelation dates and notice periods and must send the cancellation each named tenant separately and individually.

You on the other hand must give notice jointly and co-signed by all named tenants. You have the option to present a suitable and solvent replacement tenant in case you want to cancel early w/o observing notice period or cancelation dates. However, this is legally results in the dissolution of the old contract and the establishment of a new contract with new named tenant(s). The new tenant can be a single person, or like in your case multiple named tenants.

Here your big problem. If one of you intends to leave (say tenant #3) you have the following options.

#3 stays on the main contract, the room gets sub-leased. #3 is still fully liable. But getting landlord consent is easy as there are legal provisions which allows a sub-let. Art. 262 Code of Obligation.

#1 and #2 want to be the only to be named on main contract, #3 wants to be released from its obligation. This can only be done with the landlords consent and #1, #2, and #3 must all give consent. From a legal point of view this is the same as the next option.

#1, #2 and #3new want to be the ones to be named on main contract, #3 wants to be released of its obligation. The landlord must agree and also #1, #2, #3 and #3new must all agree. As said, legally this is the same as the previous: Art. 264 Cod of Obligations.

As you see this is considered as an early return of the object and presenting a replacement tenant. In one case the "replacement tenant" is #1 and #2 only, in the other case #1, #2, and #3new. In the first case the landlord will loose a jointly liable tenant. In the second it mostly stays the same. Here comes the big gotcha which can bite you in the ass: The landlord can refuse the replacement tenant and is free to put the aparment on the market / give the apartment some one else. Oooops. That actually happened in the house I live.

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1. What should we do with the contract so it has legal standing in Switzerland?
The contract you make amongst yourself does not have to fulfill any special formalities. Even a verbal contract or silent action is good enough. It is very common that a simple partnership is formed with neither a verbal nor written contract. Often w/o the contracting parties beeing aware that they are actually part of a simple partnership. A written and signed contract can make life easier.

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2. Can we, alternatively, make all contracts between ourselves auto-destruct on 31 March 2022, except if we all sign something saying otherwise before that?
(The reason is the following: we all have no income now. In a year and a half, each one of us will either have income, or will be out of Switzerland, by virtue of not being allowed to stay here.)
Sure. But be aware that the contract between you is just between you and no one else. Specially not with the landlord. If you want to have total security, cancel the rental contract to the first possible date just after you signed the rental contract. Then it is super clear the the rental will run out March 31 2022 and you will be relived of all your obligations from the rental contract. There is a minimum cancellation period but no maximum. So this is perfectly fine and possible.

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3. Is there any comprehensive source in English on the Einfache Gesselschaft we will be signing, except https://www.kmu.admin.ch/kmu/en/home...rtnership.html? It says almost nothing.
The original source and law. Code of Obligation starting at Article 530.
https://www.admin.ch/opc/en/classifi...ndex.html#a530
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Old 28.09.2020, 22:58
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Re: Minimum length of rental contract - surprise

Thank you immensely for these legal insights. There are still a few things left unclear:

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You on the other hand must give notice jointly and co-signed by all named tenants. You have the option to present a suitable and solvent replacement tenant in case you want to cancel early w/o observing notice period or cancelation dates.
Does the landlord have any obligations to accept this? What does usually happen in these cases?

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#1 and #2 want to be the only to be named on main contract, #3 wants to be released from its obligation.
I understand that the landlord has no obligation to accept a new tenant, nor only #1 and #2 as tenants.

How to set this up so that #3 can oblige the tenants #1 and #2 to give notice on the standard cancellation date, if the landlord doesn't accept the alternatives?

Because otherwise, #3 cannot get rid of the lease in their name, and it could tricky when #3 is e.g. not allowed to be in Switzerland, or maybe wants to find another lease somewhere else.






Also, does Art. 263 Code of Obligation relevant here? What do 263.2 and 263.4 mean in this context?
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Old 28.09.2020, 23:28
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Re: Minimum length of rental contract - surprise

As far as i know, the contract will be ended if you are not anymore a resident?
Because, last time i signed a contract for swisscom, they also said that it can be cancelled after 2 years, or .... if you are not a resident anymore?

Or am i missing something?
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Old 28.09.2020, 23:57
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Re: Minimum length of rental contract - surprise

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Also, does Art. 263 Code of Obligation relevant here? What do 263.2 and 263.4 mean in this context?
No. This applies to commercial premises only (stores, offices, workshops etc.)

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Does the landlord have any obligations to accept this? What does usually happen in these cases?
Yes the landlord must accept this, it is the law, but as said the landlord has the option to put someone else in the apartment. The best way is to first present a replacement tenant, than discuss with landlord/rental agency if it will be accepted, and only than cancel old contract when you can also sign the new contract at the very same time.

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How to set this up so that #3 can oblige the tenants #1 and #2 to give notice on the standard cancellation date, if the landlord doesn't accept the alternatives?
As said, cancel the apartment right after you signed to the first cancelation date. That is the only bullet proof option to lower your financial liability (next to not sign the contract in the first place). If #3 levaes eraly they have to find a sub-tenant.

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it could tricky when #3 is e.g. not allowed to be in Switzerland,
Bluntly said: That is #3 own problem. Shouldn't have signed the rental contract in the first place.

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As far as i know, the contract will be ended if you are not anymore a resident?

Or am i missing something?
You are missing that the law does not say such a thing. When a contract can be cancelled is mostly defined by the terms and condition of said contract itself. In case of rental contract there is Art. 266g Code of Obligations but this does not apply to facts known at time the rental contract was singed or could have reasonably be known to happen.
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Old 29.09.2020, 00:11
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Re: Minimum length of rental contract - surprise

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As said, cancel the apartment right after you signed to the first cancelation date. That is the only bullet proof option to lower your financial liability (next to not sign the contract in the first place). If #3 leaves eraly they have to find a sub-tenant.

Thank you! Sorry, but I again do not understand what is written here in the first sentence. Could you maybe elaborate?



Also, why couldn't #1, #2, and #3 sign a contract between themselves saying: on the given date, the first where it's allowed by the contract, if someone of wants to move out, and the landlord doesn't want replacement tenants, we cancel the contract with the landlord? Is this allowed?
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Old 29.09.2020, 01:10
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Re: Minimum length of rental contract - surprise

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As far as i know, the contract will be ended if you are not anymore a resident?
Because, last time i signed a contract for swisscom, they also said that it can be cancelled after 2 years, or .... if you are not a resident anymore?

Or am i missing something?

With Sisscom etc, sure they'll cancel it but you (most probably) still need to pay them the full value of the contract.
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Old 29.09.2020, 01:15
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Re: Minimum length of rental contract - surprise

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Personally I'd be very hesitant to sign that contract.

Even though you probably agree to pay one third of the rent each, or something similar, each of you can be held responsible for the entire rent.

Any of them. Doesn't this potentially work in the OP's favour? In the absence of any other relevant agreement he could just say see you later and the two who remain will have to pay the rent? Those two would/should mitigate their loss by finding a replacement tenant.
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