The subletting agreement – how to succeed with a subtenant!

Yes, subletting is permitted in Switzerland. Any clauses in a tenancy agreement that prohibit subletting of residential or commercial premises are invalid. The rental property may be sublet in whole or in part by the tenant. The tenant must obtain the landlord’s consent. It is difficult for the landlord to refuse this consent. The essentials are set out in Art. 262 Para. 2 OR. The landlord may only refuse consent in three cases:

Spouses, cohabiting partners and close family members may move in without a subletting agreement. They are not considered subtenants. They may only not move in if the apartment would be overcrowded. All other persons are subtenants. The landlord must be informed of the personal details of the new co-residents.

The subletting arrangement should always be recorded in writing in an agreement. The termination formalities are the same as for a normal tenancy agreement. It is recommended to record in writing the rooms used exclusively by the subtenant as well as all jointly used rooms such as the kitchen and bathroom.

Oral agreements are not advisable. Whilst verbally concluded contracts are legally valid in principle, they are difficult to prove in the event of a dispute. This only works if oral agreements are concluded in the presence of third parties. Our tip: always conclude subletting agreements in writing.

Swiss law does not prescribe any specific form. If you wish to sublet your apartment, you should proactively provide the landlord with all important information. This includes the rooms concerned, the rent, the personal details of the subtenant, etc. You should also communicate your intention in writing.

If none of the three grounds for refusal mentioned above applies, the landlord must consent to the subletting. If the landlord nevertheless responds with a written termination, you can go to the conciliation authority and challenge the termination of the lease as abusive. Important: if you intend to move out wholly or temporarily while subletting your apartment, you should definitely authorise a trusted person to initiate legal steps within the prescribed deadlines.

No. You may only sublet if you can credibly demonstrate that you may return to the apartment at some point.

Apart from a conflict, you risk termination by your landlord.

The subletting rent must be in a factually justifiable and reasonable proportion to the main rent. The floor area used by the subtenant can serve as the basis for calculation. Costs for jointly used rooms such as the bathroom and kitchen should be factored in.

A surcharge may be levied for the use of furniture. This should be based on the lifespan and value of the furniture. Naturally, surcharges for electricity costs and other charges such as telephone or television may also be applied. Important: in general, the main tenant may charge a maximum of 10% more rent than they themselves pay. For furnished apartments, the maximum is 20%.

The deposit may not exceed three months’ subletting rent. In any case, the deposit must be placed in a special rental deposit account. This account must be held in the subtenant’s name. Alternatively, rental deposit insurance can be used. Also read our article on rental deposits in shared flats.

When the main tenant gives notice on their apartment, they must first also terminate the subletting arrangement. Similar to an extraordinary termination, the main tenant may propose the subtenants as new tenants. However, the landlord is not obliged to accept them.

For a subtenant, the main tenant is the landlord. Accordingly, the subtenant must fulfil the same rights and obligations towards the main tenant as the main tenant fulfils towards their landlord.

The main tenant retains all their rights and obligations even when subletting. Furthermore, the main tenant must continue to pay the rent even if their subtenants fall into arrears. Another point is liability for damage caused by the subtenant. Even if the subtenant causes damage, the main tenant is responsible for it. In addition, the main tenant guarantees to the landlord that the rental property is used by the subtenants in the intended manner. The main tenant remains the point of contact for the landlord at all times. Even if the main tenant is on the other side of the world, they remain responsible for compliance with the lease and the regular payment of rent.

However, subtenants do have the option of having the main tenant issue them with a power of attorney so that they can contact the landlord directly in the event of any necessary repairs.

Just as between landlord and main tenant, the statutory notice period applies between main tenant and subtenant. For residential premises, this is 3 months. For commercial premises, it is 6 months, and for furnished rooms, the period is 2 weeks. Note that the subtenant must use the official form when giving notice.

The subtenant has the same options vis-à-vis the main tenant as exist between main tenant and landlord. It is therefore possible, if in doubt, to go to the conciliation authority. However, there is one restriction: if the landlord terminates the main tenant’s lease, the subtenant’s tenancy cannot be extended beyond the termination date. An extension is only possible in exceptional cases.

This question cannot be answered straightforwardly. In some cases it is possible, in others it is not. We therefore recommend consulting with the landlord.