Flat-sharing : beware, ending it is not so simple!

Whether you are a student, in your thirties or in your prime, flat-sharing is all the rage. But beware, flat-sharing can be tricky when one housemate, but not the others, wants to end it, either by leaving the flat and no longer being on the lease or by terminating the lease!

Under Swiss law, one or more people can be listed on a lease and therefore be flatmates.

Being a flatmate has important legal consequences vis-à-vis the landlord, and it is important to be aware of this before deciding to live in a shared flat.

One of the consequences is that flatmates are jointly and severally liable. This means that each flatmate is liable for the entire rent. In other words, the landlord can seek payment of the entire rent from any one flatmate, not just a proportionate share. Thus, if one roommate does not pay their share, the others can be sued by the landlord for the entire rent. This joint liability for the entire rent continues as long as the roommate remains listed on the lease, even if they have actually left the apartment long ago.

Another consequence is that, for certain acts related to the lease, the flatmates have joint legal standing and are co-defendants or co-claimants. This means that they must act together. This is particularly the case when terminating the lease. All flatmates must therefore agree to terminate the lease (by the end of the term and within the specified time frame) and must sign the letter of termination addressed to the landlord. Thus, if one or more flatmates refuse to sign the termination letter, the termination is not valid and will have no effect. It will therefore not release the flatmates who want to leave and who have signed and sent the termination letter.

When the relationship between flatmates is peaceful and harmonious, there are no problems. However, things can become much more complicated in the event of a dispute between flatmates, for example when one of them stops paying their share of the rent, when one of them wants to leave the flat and no longer be on the lease, or when one wants to terminate the lease while the others want to stay.

In these tricky cases, it is important to be aware that flatmates are considered to form a simple partnership.

Simple partnerships are governed by Articles 530 et seq. of the Swiss Code of Obligations (CO).

Under Article 530 CO, a partnership is a contract whereby two or more persons agree to combine their efforts or resources to achieve a common goal. In the case of flatmates, the common goal is to live together in an apartment, sharing it and sharing the rent.

Pursuant to Article 545 of the CO, shared tenancy shall terminate in the following cases:

– when the social purpose has been achieved or has become impossible to achieve: this will be the case if the landlord terminates the lease.

– upon the death of one of the co-tenants: however, the lease shall continue to be binding toward the landlord.

– by the unanimous decision of the co-tenants: the co-tenants must then terminate the lease upon its expiry and within the notice period, jointly and therefore by all signing the letter of termination.

– upon expiry of the period for which the company was formed: this will be the case in particular if the lease is concluded for a fixed term with automatic termination upon expiry.

– by termination of the contract by one of the co-tenants, if the simple partnership was formed for an indefinite period: in this case, the co-tenant who wishes to terminate the simple partnership must bring about the dissolution of the simple partnership by giving six months’ notice. However, the termination must be in good faith and not made at an inopportune time. The termination of the simple partnership by one of the co-tenants has no effect on the landlord. In other words, as long as the lease is not terminated by all the co-tenants, it remains in force and the co-tenants remain jointly and severally liable for the rent. This also applies to the co-tenant who terminated the simple partnership.

– by a court ruling, in cases of dissolution for just cause: in the event of disagreement between the co-tenants, the co-tenant who wishes to leave and no longer appear on the lease or who wishes to terminate the lease when the others do not wish to do so may have no choice but to take legal action. The co-tenant will therefore have to take legal action to obtain a judgment confirming the dissolution of the simple partnership, i.e. the end of the flat-sharing. This action must be brought against all the co-tenants listed on the lease agreement.

It is important to note that even if the dissolution of the simple partnership, i.e. the flat-sharing, is ordered by a judge, this has no effect on the landlord. As in the case of termination, as long as the lease is not terminated by all the co-tenants, it remains in force and the co-tenants remain jointly and severally liable for the rent.

However, it is always possible to reach an agreement with the landlord, and if they agree that one of the co-tenants should no longer be listed on the lease or be replaced by another person, it is no longer necessary to take legal action.

If the decision to live in a shared accommodation is made, given the significant legal consequences and implications for the landlord, the advice of the undersigned author is as follows:

– If financially possible, the person named first on the lease may wish to remain the sole tenant but sublet part of the property (with the landlord’s consent and under the conditions set out in the Swiss Code of Obligations). Admittedly, the person named alone on the lease will be liable for the entire rent to the landlord, but this person will retain control of the lease and of the decision to terminate it;

– draw up a clear flat-share agreement to be signed by all flatmates. Although this agreement will not be enforceable against the landlord, it will have the advantage of regulating the internal relations between the flatmates, who form a simple partnership.