The risks of subletting
The risks of subletting
"A few years ago, I entered into a lease agreement for commercial premises, which I subsequently sublet under a written agreement. I terminated the main lease with the owner of the building and then also terminated the sublease at the end of July 2016, but the subtenant has still not vacated the premises and has not paid any rent for three months. Am I at risk of having to pay this rent in his place at the hands of my former landlord?"
Léo, Morges
First of all, it is important to draw your attention to the fact that a sublease is a lease in its own right, independent of the main lease on which it is superimposed. Such a contract binds the sub-lessor (who is the main tenant) and the sub-tenant, but does not create any direct contractual link between the main lessor and the sub-tenant.
When the sublease expires, the subtenant is obliged to return the premises to the main tenant, in accordance with the general rule of tenancy law set out in art. 267 of the Swiss Code of Obligations (CO). Failure to do so may result in eviction proceedings. The tenant/sublessor, on the other hand, is liable to the principal lessor for the payment of rent, even if the subtenant does not pay his own rent! Therefore, if the sub-tenant remains in the premises after the end of the main lease, the tenant will be liable to pay the landlord compensation for unlawful occupation, even if he or she has taken all the necessary steps to ensure that the premises are returned at the end of the lease. However, at the end of the main lease, the lessor may ask the sub-tenant directly for compensation for unlawful occupation based on art. 62 para. 1 CO if the sub-tenant has not paid what is owed to the main tenant. The amount of this compensation is in principle equivalent to the rent and ancillary costs due for the main tenancy.
You are therefore liable to your landlord for any wrongdoing on the part of your sub-tenant, pursuant to art. 101 of the Swiss Code of Obligations, and must pay compensation for the unlawful occupation caused by the sub-tenant. However, termination of the sublease does not, of course, deprive you of the right to claim reimbursement from your recalcitrant subtenant.
