unerlaubte Untermiete
– 2. August 2024

Extraordinary termination in the event of unauthorised subletting

Subletting is only permitted if the tenant intends to live in the rented property again in the near future. If this intention cannot be clearly established, extraordinary termination by the landlord is possible.

In the present case (BGer 4A_143/2023) , the parties concluded a rental agreement for a 2-room flat. When the management became aware that the tenant was subletting the flat and living in her sister’s flat in another of the landlord’s properties, the tenant was obliged to move back into the flat herself within 30 days under threat of termination. As the tenant did not comply with this request within this period, the landlady terminated the tenancy agreement extraordinarily and on the same day also terminated it with a notice period of three months. The tenant’s sister was also given notice to leave the flat.

The first instance was of the opinion that the cancellations were invalid. In contrast, the second instance declared the extraordinary termination for the flat to be valid.

The tenant may sublet the property in whole or in part with the landlord’s consent (Art. 262 para. 1 CO). The landlord can only refuse consent to sublet for one of the following reasons:

  • The tenant refuses to disclose the terms of the sublease to the landlord
  • The terms of the sublease are abusive compared to those of the original main lease, or
  • The landlord suffers significant disadvantages as a result of the sublease.

If the tenant continues to breach their duty of care and consideration despite a written warning, so that the continuation of the tenancy becomes unreasonable for the landlord, the landlord can terminate the tenancy agreement with at least 30 days’ notice to the end of a month. The Federal Supreme Court assumed that these conditions were met in the case of a sublet not authorised by the landlord, as statements made by the caretaker and investigations carried out revealed that the sublet was unauthorised in this specific case.

According to case law, subletting is intended for tenants who temporarily do not use the rented property themselves or who merely leave parts of a rented property to third parties. However, if a change of tenant is intended via the sublease, the tenant is acting abusively (Art. 2 ZGB). The vague possibility that the rented property could one day be occupied again by the original tenants themselves is not sufficient.

Based on this, the Federal Supreme Court confirmed the admissibility of the extraordinary termination.

If you have any questions about tenancy law, our lawyers will be happy to assist you.

Facebook
Twitter
LinkedIn
XING