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Definition of family dwelling

The provisions on family housing relate only to the principal residence. A family dwelling is an apartment or villa that serves as a home for married or civil union spouses, with or without children.The Federal Court presumes, in the case of marriage or registered partnership, that there is a common domicile, even if the spouse's name does not appear on the letterbox or door sign.

The home of cohabiting partners is not considered a family home and they do not enjoy special legal protection.

Termination of the lease of a family dwelling by the lessor

Article 266 n of the Code of Obligations requires the landlord to notify the formal notice and termination to each of the spouses by separate folds, even if the lease has been established to only one of them. Art. 266 n is of mandatory law, i.e. the parties may not derogate from it by a contractual clause. It is in the interest of the lessor to check before a formal notice or a termination of the lease whether there has been a marriage during the course of the lease, failing which he risks having the termination declared void If the lessor mentions the tenant's obligation to announce the change of marital status and the does not do so, he may be liable for damages.

According to Art. 273 a of the CO, the tenant's spouse may also contest the notice of termination of lease, apply for an extension of the lease and exercise the other rights of the tenant in case of termination, even if he or she is not the tenant. It is the tenant who is liable for the rent, not his or her spouse.

Termination of the lease of a family dwelling by tenants

According to Article 269 of the Civil Code, a spouse may not, without the express consent of his or her spouse, terminate the lease of the family dwelling. If consent is not obtained, a judge's authorization is required.

In the event of divorce (art. 121 of the Civil Code)

In the event of divorce, the judge may allocate the dwelling to one of the spouses. The spouse who is no longer a tenant is jointly and severally liable for the rent until the expiry of the lease or until the end of the termination provided for by law or by the contract, but for a maximum of 2 years. When he or she is liable for the payment of the rent, he or she may offset the amount paid to the landlord against the maintenance contribution due to his or her spouse, by instalments limited to the amount of the monthly rent. Art. 121 applies only in the event of divorce, but not in the event of legal separation. The lessor may not oppose the allocation of the dwelling by the judge to one of the spouses. If the lessor can prove that he suffers major inconveniences, for example if the tenant is not solvent, he may terminate the lease.

 © Written and translated by Esther Lauber, Real Estate Trustee with Advanced Federal Diploma of Professional Education and Training, real estate manager
Legal terms taken from the portal of the Swiss goverment (Swiss laws), partly translated from French to English with DeepL, in case of doubt, the French or Germain version should apply

 

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Separation or divorce - allocation of rented accommodation

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