The protection of a spouse with regard to the family home, regulated by the Swiss Code of Obligations (CO), aims to offer special protection and security in the event of the termination of a rental agreement by the landlord, as well as by the primary tenant (holder of the lease).
The concept of the family home is addressed in rental law, first in Articles 266m and 266n CO, which deal with the end of a rental agreement and the form of notice, and second in Article 273a CO concerning disputes over termination by the landlord, requests for lease extension, and other tenant rights in the area of protection against terminations.
These provisions offer special protection to the spouse or registered partner who is not the leaseholder in their right to occupy the family home. Specifically, these special rules are designed to protect the spouse or partner who is not the leaseholder when the leaseholder gives notice (Article 266m CO) or when the landlord gives notice (Article 266n CO)[1].
Consequently, "the double notification of the termination required by Article 266n CO aims to protect them against the risk of not receiving the notice and thus being deprived of any possibility to contest the termination or request an extension of the lease"[2].
These special rules applicable to the family home must also be respected in the case of the termination of a mixed-use lease[3], that is, when the family home also serves as a commercial space, provided that there is no abuse of rights. Indeed, it is commonly accepted in doctrine that when the leased property serves both as a commercial space and a family home, tenants should benefit from the special protection established by the legislator. Therefore, the fact that the property in question also has a professional use does not negate its family character[4].
Federal Court jurisprudence defines the family home as "the one in which married spouses, or registered partners, with or without children, live and have the center of their family life; the home loses its family character in the event of the definitive dissolution of the marriage or partnership, or when both spouses or partners decide to no longer consider the home as family, or when they have left it, or when they have decided to assign it definitively to one of them; it also loses its family character when the spouse or partner benefiting from legal protection leaves the home permanently or for an indefinite period"[5].
Thus, the special provisions applicable to tenants in the context of a family home are relevant only in the case of marriage or registered partnership, with or without children. Members of a non-marital cohabitation, that is, unmarried partners or non-registered partners, do not benefit from special protection in rental law. Indeed, the protective rules addressed to married couples or registered partners generally do not apply to them. The member of a non-marital cohabitation (unlike a spouse or registered partner) is not protected against the termination of the lease given by the leaseholder. They cannot claim rights arising from the lease contract as the spouse or registered partner might, such as contesting the landlord’s notice or requesting an extension of the lease[6].
In conclusion, when the rented property serves as a family home, a spouse cannot, without the express consent of their partner, terminate the lease (Article 266m CO), sell the family house or apartment, or restrict by other legal acts the rights related to the family home (Article 169, para. 1 CC). Additionally, according to Article 266n, para. 1 CO, the notice given by the landlord must be communicated separately to the tenant and to their spouse or registered partner. "By separate mailing, it is meant the sending to each spouse, in two separate envelopes, of the official notice form prescribed by Article 266l, para. 2 CO"[7].
However, it is up to the tenant to inform the landlord of their family situation, both at the beginning and during the lease. Doctrine considers this duty to be an accessory obligation of the tenant, whose non-compliance may expose them to liability for damages. During the lease, the tenant must inform the landlord of significant changes that may affect the existence of the family home[8].
Finally, if the party giving notice does not comply with the formal requirements of Articles 266l to 266n CO, the notice is invalid (Article 266o CO)[9]. Thus, it does not matter whether the violation of the formal requirement was intentional or not, or whether the landlord, by notifying only the tenant spouse, acted in good faith or not. Similarly, the fact that the spouse or registered partner not holding the lease was aware of the termination does not in any way remedy this defect[10].
[1] Federal Court 4A_656/2010 of January 6, 2011.
[2] Judgment 102 2019 131 of June 19, 2019, II Civil Court of the Canton of Fribourg, para. 2.2.1.
[3] Federal Court 4A_656/2010 of January 6, 2011 – Commentary by Patricia Dietschy-Martenet (www.bail.ch).
[4] Federal Court 4A_656/2010 of January 6, 2011 – Commentary by Patricia Dietschy-Martenet (www.bail.ch).
[5] Federal Court 4A_569/2017 of April 27, 2018, para. 5; ATF 139 III 7, para. 2.3.1.
[6] Francesca Ranzanici Ciresa, The Protection of the Weaker Party in Non-Marital Cohabitation, Stämpfli Verlag, 2019, p. 265.
[7] Judgment 102 2019 131 of June 19, 2019, II Civil Court of the Canton of Fribourg, para. 2.2.1.
[8] Federal Court 4A_673/2012 of November 21, 2012.
[9] Federal Court 4A_125/2009 of June 2, 2009, para. 3.4.1.
[10] ACJC/539/2018 of April 30, 2018, Geneva Court of Justice, para. 3.1.3.
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