In principle, an eviction action can only be initiated by the landlord if the latter has formally requested the tenant to return the rented property. A formal notice is a procedure that informs a person that the deadline to fulfill an obligation is approaching or has passed.
The law guarantees several defenses to anyone wishing to oppose an eviction.
The first defense is based on the “terminable nature of the lease.”
A lease contract can be for a fixed term or an indefinite term. In the former case, the lease ends “automatically” at the expiration of the agreed term or on a specific date. In the latter case, the lease does not end automatically. Instead, one of the parties (tenant/landlord) must express their intention to terminate the lease, observing the legal or contractual notice periods. If the landlord – while initiating an eviction procedure – claims that the lease is for a fixed term, the tenant can argue the opposite. Indeed, if the tenant asserts that the lease is for an indefinite term, the formal requirements the landlord must adhere to are stricter.
The landlord must, among other things, notify the tenant of a termination notice; this is something the authority (in matters of eviction) will need to examine.
The second defense concerns the extension of the lease. Two situations can be distinguished. First, when there is a contractual relationship between the parties and the tenant has initiated an action seeking an extension of the lease (Article 273 para. 2 CO), the landlord’s eviction request is generally inadmissible. Only in exceptional cases can the landlord’s request be admissible. The authority will need to decide whether the lease is extendable or not. On the other hand, in the absence of a contractual relationship, such as in the case of subletting, different rules apply.
A third defense relates to defects in the termination notice. This includes situations where the notice was not properly given, such as when a notice is non-existent, null, or incomplete. In principle, the landlord’s eviction action is rejected. However, there are exceptions, such as the possibility of validating the notice later. If the notice is annulable because it contradicts the principle of good faith, the tenant must file an action within thirty days of receiving the notice. Failing this, the eviction action remains valid.
Additionally, in certain situations, if the tenant can prove that their consent to the termination was vitiated – by error, deceit, or threat – they may attempt to invalidate the termination (Articles 23 to 30 CO). If a notice does not meet a deadline or term, although it is valid, its effects are postponed to the next possible date.
The fourth defense pertains to the tacit renewal of a lease if the previous tenant has not vacated the premises (Article 266 CO). This argument is applied in specific cases. When the tenant is aware of both the lease termination and eviction but continues to use the property, it cannot be asserted that the landlord has accepted this “new” lease.
Finally, the last defense concerns the lapse of the action. The passive behavior of a landlord who allows a long period to pass while the tenant does not pay the rent may be considered as a waiver of the right to initiate eviction.
However, this could lead to the formation of a new de facto contract similar to an indefinite lease that can be terminated.
It is important to note that the relationships between the landlord and the subtenant follow different rules.
If you need further legal information on this matter, please do not hesitate to contact Valentin Legal Consultation. We would be delighted to welcome you to our offices: either for advice or to use our online services.
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