Searching for a next tenant - But how?

Jürg Zulliger

Do you want to give notice and do not know how to go about it? Many people find themselves in the same position: “Questions about early lease termination, or more commonly referred to as breaking a lease, are the current hot topic,” says Fabian Gloor. He is an attorney at the Tenants’ Association and manages the legal hotline on a daily basis.

There are good reasons why this topic is so hot for so many: Flexibility is needed in today’s job market. In no time at all, the next “lease contract” is imminent. But if the next ordinary termination date is five or six months away, it will be tight. Who can or wants to pay the rent for two apartments at the same time? This means that often, there is nothing left but to make use of the right of termination without notice, that is, to break a lease. And in cities, new leases are often advertised so quickly that a tenant has no chance to terminate the old apartment in time.

Breaking a Lease

The good news: The law grants tenants the right to return an apartment prematurely—without observing the period and date for normally giving notice. The Code of Obligations Art. 264 does state that:

• It is enough to propose one reasonable new tenant.
• The subtenant must be solvent.
• He or she must agree to accept the contract at the current terms.

“Equal conditions” is meant literally. For example, if pets are not allowed, then you need to find a subtenant who does not own a pet. According to the Federal Supreme Court, “solvency” must be interpreted in such a way that the rent should not exceed one third of the net income.

In practice, however, the specific process of “searching for tenants” does raise questions. “People sometimes worry that as lessees, they will not be able to prove that they have fully fulfilled their obligations in the event of a dispute,” says Fabian Floor.

Checklist: Step by Step

• Let your landlord know that you would like to break your lease. Send the letter by registered mail; keep a copy and the receipt you receive for sending this letter.
• It is important that you can document everything. Example: You must absolutely be sure to get it in writing if management decides they want to find their own subtenant!
• Advertise the apartment for rent. That’s very easy to do nowadays using an online ad service. Key information includes the number of rooms, the street address and an eye-catching title. Advertise on homegate.ch and find a new tenant
• Tips on how to design the best possible advertisement
• Show the apartment to prospective subtenants. The easiest way to do this is to keep prepared forms on hand (see links below). Prospective subtenants must declare in writing that they would take over the apartment on the same terms. Important: Make copies of all documents, including the completed forms and a debt collection register excerpt on the prospective subtenants. In case of doubt, you must be able to document everything in order to legally break your lease.
• By law, just one subtenant is sufficient. You should, however, have several replacement tenants in mind just in case your first prospective subtenant doesn’t work out.
• Let your management know when your subtenant plans to move in. You must, however, give management time to review the documents. Ten days should suffice for a professional landlord. “Twenty to 25 days are more likely to apply for private individuals,” states attorney Gloor. These are essentially the only deadlines. Your management cannot, for example, demand that you vacate your apartment by the end of the month.
• Find out from the landlord if the deadline has passed. In order to safeguard yourself, you absolutely must request written confirmation that you are now free of any of your former contractual obligations!

Searching for a Subtenant: The Legal Situation

The landlord cannot refuse prospective subtenants for flimsy reasons. Racist or sexist reasons in particular are not grounds for refusing a subtenant. While "solvency" is rather easy to objectively quantify, the term "reasonable" is rather subjective and is not as easy to objectively quantify. Consider the following example: The landlord does not have to tolerate a concert pianist who practices at home in an apartment building that is otherwise very quiet.

Establishing the amount of monthly rent can be tricky. What if the management now wants to adjust the price to match the locality and type of neighborhood accommodation in the event a tenant is moving out after a long tenancy? Basically, this is the management’s problem. Purely formal: The renter is nevertheless released from any further financial obligation if a prospective customer changes his or her mind because they do not want to shell out another 200 or 300 francs. The current tenant’s obligation to pay ends the day the new tenant rents the apartment in question.

Attention: If the management does not find a solution that suits them, they could still sue the withdrawing tenant. Therefore, you should always show evidence of other perspective subtenants in such cases.

The topic of "finding new tenants" is a major concern for many people because of the rise in housing vacancies—at least in rural areas or wherever there are many new buildings. “In regions with high vacancy rates, the risk of not finding replacement tenants in time increases,” says Fabian Floor from the Tenants Association. It can be expensive until the bitter end of the contract.

Can’t Find a Subtenant?

Tips for actual practice: Instead of leaving the apartment empty, it is better to sublet the apartment for a certain period of time or until the regular termination date.  That will at least mitigate the financial consequences. Subleasing is possible if the management agrees.

In principle, the tenant is liable for all contractually agreed costs, including utility costs. Management must allow for any savings when discussing the amount of payments due, . Example: The management uses the temporarily empty apartment in order to have it repainted or to have the kitchen remodeled.  No rent is dueduring this time.

Searching for a subtenant: Sample documents

The most important items regarding breaking your lease, including sample letters, are:

Guides, letter templates and sample documents