Moving to an EMS and taking over the lease

Moving to an EMS and taking over the lease

"After my mother died, my father went into an EMS. If I apply to take over the lease, do I have priority as a family member?

Marc, Geneva

If your father continues to pay the rent himself, he will in principle be able to keep the flat in his name. This could be the case if your father wishes to return to his flat for a given period or if he gives you the use of the flat free of charge.

However, if your father no longer occupies the premises for his personal use and does not wish to continue paying the rent, he should consider subletting or transferring the lease. Under art. 262 of the Swiss Code of Obligations, the tenant may sublet all or part of the property with the consent of the landlord. The landlord may only withhold his consent if the tenant refuses to inform him of the conditions of the sublease, if the conditions of the sublease compared with those of the main lease are unfair or if the sublease presents major inconveniences for the landlord. According to case law, subletting is a temporary solution and the landlord cannot be obliged to accept it if your father refuses to return to the flat. Similarly, the transfer of the lease under articles 164 ff and 175 ff of the Swiss Code of Obligations can only be envisaged if the landlord gives his express agreement or by means of a conclusive document.

It should be noted that art. 264 of the Swiss Code of Obligations allows for early return of the property if the tenant presents a new, solvent tenant whom the landlord cannot reasonably refuse. Your father could therefore return the flat in advance by presenting you as a new tenant. However, this solution will not guarantee that the landlord will agree to enter into a new lease with you. In all these situations, you will find that a new lease will depend on the landlord's goodwill and that, in principle, you have no priority as the son of the former tenant.

Finally, if your father receives social benefits to contribute to the costs of his stay at the EMS (in particular supplementary benefits), you will still need to examine whether such a rent burden for your father (with or without subletting) is admissible from the point of view of the social services.