What happens after the death of a tenant?

Jürg Zulliger

A tenant’s death is a burdensome topic. Many difficult questions must be answered by close relatives, the family as well the apartment management. In individual cases, this depends on the circumstances and the family environment. One main point in advance: The heirs take over many rights and duties. Fabian Gloor, a lawyer with the Swiss Tenants Association, says: "The heirs enter into the legal status of the deceased." If the latter lived as a tenant in a rented flat, the community of heirs takes over all requirements and obligations. If the claims are justified, the heirs must, for example, pay the monthly rent owed and, in some cases, other invoices and costs.

Termination by Heirs

However, the law grants heirs special rights in the event of a death. They have the option of terminating the rental agreement with the statutory period of three months to the next termination date. Termination dates are different for each region and canton and the heirs must act quickly. For instance, if a tenant dies in January and April 30 is the next termination date, they must cancel for this date. "In practice, however, the overall situation is taken into account," emphasizes Gloor. This means that the time for reflection must be generously interpreted. In this exceptional case, the management usually acts in a courteous manner and does not seek a delay simply because the termination notice arrived slightly late. Then, too, the heirs usually have an interest in dissolving the lease, because they want to vacate the apartment and not pay unnecessary charges for the demanded rent.

What laymen are often unaware of is that legal heirs are virtually in the contractual position of the deceased person. If a community of heirs consists of several persons – such as the testator’s widow and children – they all must sign the notice together. Theoretically, the management could question the heirs’ right of termination. Under certain circumstances, they would then have to submit a certificate of inheritance. "Fortunately, in most cases, the management is pragmatic," says Fabian Gloor.

Tenant’s Death: Check Contract Cancellation

Our recommendation is: It’s best for the heirs to talk to the management. It is quite possible their interests are basically the same. Perhaps the management wants to renovate the apartment as soon as possible and then re-advertise it for rent. If both sides concur, they can agree on a cancellation arrangement. "This even allows for an immediate termination of the lease," according to lawyer Fabian Gloor. It is important that an immediate termination of the lease be formally correct, in writing and of course with the consent of both parties.

What happens if no immediate solution is possible and the contract may not be terminated for some time? All tenants can make use of the statutory right of early return (Article 264, Swiss Code of Obligations). This provides them with the privilege of being released from their obligations without observing a notice period. It requires, however, that they provide a new tenant who is reasonable and solvent. The subsequent tenant must essentially be ready to assume the lease on the same terms.

Tenant’s Death: What Applies in Partnerships?

What gets ignored are the consequences for the spouse or partner. "If a couple did not originally sign the lease in solidarity, in a death the lease does not automatically pass to the surviving partner," explains Gloor. This is illustrated by an example: A widow does not automatically have the privilege of staying in the flat. She is entitled to this right only if she and the deceased were both contracting parties or if the widow is the sole heir of the deceased. To better assure themselves, spouses and cohabiting partners should always sign such contracts together.

If the family and inheritance relationships are complex, appointing an executor would make sense. For example, a testator has the opportunity to use a suitable executor in a will. This person then takes care of the inheritance issues and even the lease dissolution.

Naturally, the essential questions and issues are somewhat different for the management. The landlord has no possibility of extraordinary termination; he must comply with the statutory deadlines and customary termination dates. If, after a death, a widow lives alone in the rented apartment, she cannot be terminated easily. Fabian Gloor: "A court would most likely consider such a dismissal of the widow to be abusive."

In connection with the topic of a tenant’s death, there are still a few special cases to mention: If the heirs refuse an inheritance, the estate is opened in bankruptcy. Depending on that, it will be difficult to settle any rent claims from the estate.

Tenant’s Death: If No Heirs Are Found

The procedure would be similar if no heirs are found. In this case, the management has to take care of the evacuation and formalities and the responsible bankruptcy office carries out an official liquidation. The landlord must assert his claims in the proceedings. Depending on this, it is the only way to finance outstanding rents or costs of housing evacuation.

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