Termination of lease with spouse's agreement
Termination of lease with spouse's agreement
"I read your contribution last week regarding the form of termination of a lease. I have been married for 4 years and entered into a lease in my name over 10 years ago. I currently live in this property with my wife and our children. It seems to me that there are specific rules to be observed when terminating this contract. What are they exactly?
Yannick, Corsier
You are quite right: the lease of the family home has a special status and its termination must comply with special rules, both when only one of the spouses holds the lease and when both spouses do. The term "family home" refers to the flat or house that serves as the home of the married couple, i.e. the family home where the spouses establish their marital community on a long-term basis. The termination of such a contract is subject to additional formal requirements, in order to guarantee the protection of the family.
According to art. 266m of the Swiss Code of Obligations (CO), a tenant may only terminate a lease - on expiry or in advance - in writing and with the express consent of his or her spouse. This provision is mandatory and cannot be derogated from by contract. Its purpose is to protect the tenant's spouse against a notice being given without their knowledge or in an untimely manner. The spouse's consent may be given orally or in writing, but must be clear, unequivocal and unconditional, and must be given for a specific termination. Consent may be given before or at the time of termination, or even after termination, provided that it is given before the start of the termination period. Article 266o of the Swiss Code of Obligations stipulates that if the spouse has not given his or her consent, the notice of termination is null and void, and this can be invoked at any time.
If the tenant is unable to obtain his or her spouse's consent, he or she can apply to a judge, who will weigh up the interests and decide what to do with the notice.
If it is the lessor who wishes to terminate the contract, he must serve notice of termination separately on the tenant and his spouse, in accordance with art. 266n CO, by sending two separate envelopes, each containing the official form of termination. Failing this, such termination is also null and void.
