Withdrawal of lease termination: what does the law say?

Withdrawal of lease termination: what does the law say?

"My lease stipulates that it can be terminated by giving 3 months' notice to the end of the month. On Friday 16 December 2008, I wrote a registered letter to my management company to terminate the lease. I changed my mind over the weekend. Realising what a blunder I'd made, I faxed the cancellation early on the morning of Monday 19 December 2008. The Régie read the 2 documents at the same time, but only took my cancellation into account. Is it within its rights to do so?

Loupo, Geneva

A notice of termination is perfect and takes effect when it reaches the recipient's sphere of influence. A notice of termination is considered to have reached the recipient's sphere of influence when it arrives at his office, in his post office box or letterbox or simply in his hand. If the cancellation is sent by registered post, it normally reaches the recipient's sphere of influence when he receives the envelope from the postman and signs the receipt.

The sender of such a cancellation cannot waive it. However, in accordance with art. 9 of the Swiss Code of Obligations, the cancellation is considered null and void if the withdrawal reaches the addressee before or at the same time as the offer, for example if the cancellation is sent by post and the withdrawal is sent by fax before the post is received.

In your case, the fax must have been received by your management company before or at the same time as the registered letter. If this is indeed the case, the notice will not take effect. The time of receipt of the fax can be proven by the acknowledgement of receipt, which establishes receipt on the recipient's machine. Proof of the time of receipt of registered mail may be requested from the post office.

Article 9 of the Swiss Code of Obligations also allows the sender to be considered to have waived the right of cancellation if he can prove that, as the withdrawal arrived later, it was communicated to the recipient before he became aware of the cancellation. However, in your situation, if the fax arrived in the company's sphere of influence after the registered letter, it will be difficult to prove that the company was aware of the fax before it was aware of the letter.