Among the causes for the termination of a lease contract is termination following a formal notice to the tenant according to Article 257d CO. According to this provision, if the tenant, after receiving the rented property, is late in paying the rent or overdue charges, the landlord can notify the tenant in writing of the intention to terminate the lease if the overdue payment is not received within 30 days. This period begins from the day the letter is delivered to the tenant. If, after this period has expired, the tenant still has not paid despite the formal notice, the landlord can, pursuant to Article 257d para. 2 CO, proceed with the immediate termination of the lease with at least 30 days’ notice to the end of a month.
Regarding the validity of the formal notice sent to the tenant, it must specify the exact amount overdue. The tenant has at least 30 days to settle the arrears. A tenant who receives a notice that does not meet these conditions has the right to contest the termination and thus avoid eviction. It is therefore crucial for the tenant to know the exact amount being claimed and for which they have been put on notice.
This extraordinary termination of the lease leads to legal consequences intrinsically linked to contractual violations by the parties. The tenant indeed loses the right to possess the rented property and must return it to the landlord. According to the Federal Supreme Court’s decision of August 8, 2014, 4A_250/2014, the tenant also loses the possibility of going to court to request an extension of the lease. Article 271a para. 3 let. b CO additionally prohibits the cancellation of a notice given by the landlord in the case of the tenant's default according to Article 257d CO, thus the tenant cannot invalidate the lease termination.
Regarding the financial consequences of the termination, the tenant is required not only to pay the arrears with default interest as per Article 104 CO, but may also be required to compensate the landlord for damages resulting from the premature termination of the contract. The Federal Supreme Court indicated in ruling ATF 127 III 548 that the landlord can claim positive damages for lost rent due to the early termination of the lease.
The calculation of damages is based on the rent due during the period between, on the one hand, the premature termination of the lease and, on the other hand, the moment when the property can be objectively rented again or the date of the lease's original expiration. Jurisprudence acknowledges that the premature end of the contract under Article 257d CO is due to the tenant's default, and thus the tenant is required to repair the resulting damages. Regarding the burden of proof, the landlord must demonstrate that despite all efforts, the rented property could not be re-let.
In conclusion, the premature termination of the lease under Article 257d para. 2 CO does not imply the same obligations for the parties. The tenant evicted following the early termination of the lease may be required to continue paying rent or additional charges even though they are no longer in possession of the rented property.
If you wish to obtain further legal information on this matter, you can contact Valentin Legal Consultation. We would be delighted to welcome you to our offices for advice or to provide our services online.
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