What happens to the tenancy agreement on the death of the tenant?

• AMATIN
• Inheritance Law
• Private Clients
• Real Estate

In principle, the tenancy agreement is not simply terminated upon the death of the tenant. If the tenant lives alone and has heirs, the tenancy agreement with all rights and obligations passes to them.

Rights of the heirs

However, the law grants the tenant’s heirs a special right with Art.266i CO. The heirs may terminate the tenancy agreement subject to the statutory notice period. The duration of the rent agreed in the tenancy agreement or the period of notice stipulated therein is irrelevant for the heirs.

The consent of all heirs to the termination of the tenancy agreement is required. If an executor, an administrator of the estate or a representative of the heirs has been appointed, he/she may also give notice of termination on behalf of the heirs.

Observe notice periods

Notice of termination must be given in compliance with the statutory notice period to the next statutory termination date (Art.266b-266f CO). The statutory notice period is three months for flats. A contractually longer rental period or fixed notice period is not relevant for the heirs. The statutory termination date varies from canton to canton, but in many cantons it falls at the end of the month. For example, if the tenant dies on 11 January, the notice of termination must be given on 30 April.

In principle, the heirs’ right of termination can only be effected on the next possible statutory termination date. Under certain circumstances (in particular if the tenant dies shortly before the beginning of the statutory notice period or if the heirs only learn of the tenant’s death at a late stage), termination by the heirs is also permissible on the next but one statutory termination date.

If no notice of termination is given or if it is given late without there being an exceptional reason, the tenancy agreement shall continue unchanged with the heirs.

Relatively mandatory provision

The provision of Art.266i CO is of a relatively mandatory nature. The tenancy agreement may not deviate from the law to the disadvantage of the tenant (or his heirs). The tenancy agreement may therefore not provide for a longer notice period for the tenant’s heirs. On the other hand, it would be permissible, for example, to stipulate in the tenancy agreement that the tenant’s heirs may terminate the tenancy without notice upon the tenant’s death.

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