Contract termination under tenancy law: beginning of period for filing notice of opposition or petition for extension / use of obsolete form

1. Facts

The judgement of the Federal Tribunal is based on the following facts: the owners rented an apartment in the Canton of Vaud to the tenant in March 2009. They terminated the rental relationship by registered letter of 11 January 2012 for the next possible termination date, using an obsolete official form. The registered termination letter could not be delivered to the tenant. The postal clerk put the collection notice in her mailbox on 12 January 2012, indicating that the letter could be collected from the post office counter from 13 January 2012. The tenant collected the termination letter on 18 January 2012, i.e. on the sixth day of the collection period. On 17 February 2012, i.e. on the 30th day after collecting the termination letter from the post office counter, the tenant contacted the competent conciliation authority and petitioned for the termination to be declared invalid, or alternatively for the termination to be cancelled.

2. Judgement by Federal Tribunal

The Federal Tribunal had to decide on the one hand whether the termination should be deemed invalid due to the use of an obsolete official form, and on the other hand, provided that notice of termination had in fact been validly given, whether the petition for the cancellation of the termination was filed within the statutory period of 30 days from receipt of the termination letter (Art. 273 para. 1 OR).

2.1 Termination is not invalid because an obsolete official form was used

According to Art. 266l para. 2 OR, the landlord must use a form to give notice of termination that was approved by the canton and indicates the procedure which the tenant has to follow if she wishes to oppose the termination or apply for the extension of the rental relationship. The notice of termination issued by the landlord is invalid if it does not comply with these provisions (Art. 266o OR).
The Federal Tribunal based its judgement regarding the validity of the termination on the purpose of the official form. The consequences of using an obsolete form approved by the canton must be weighed against the purpose for which the obligation to use the currently valid form was introduced. The purpose of the prescribed official form is to inform the tenant of her right to oppose the termination or to petition for an extension and to instruct the tenant on what to do and which office to contact within what period if she wishes to assert this right (provision of information). According to the Federal Tribunal, an obsolete approved form can only lead to the invalidity of the termination if it does not contain the same information as the current official form that meets the requirements of Art. 266l OR and Art. 9 para. 1 of the Ordinance on the Rental and Letting of Residential and Commercial Property (VMWG). In the case submitted to the Federal Tribunal for judgement, the obsolete form informed the tenant just as well about what she had to do and who she needed to contact to oppose the termination or petition for an extension as the new form that should actually have been used. The notice of termination is therefore formally valid.

2.2 Beginning of period for filing a notice of opposition

The Federal Tribunal then investigated when the period for filing a notice of opposition pursuant to Art. 273 para. 1 OR began.
In BGE 137 III 208 the Federal Tribunal already thoroughly analysed the question of when a termination letter should be deemed to have been received, i.e. when the declaration of will triggers a deadline under substantive law. The Tribunal confirmed that the deadline starts running when the declaration of will enters the sphere of control of the recipient or his representative so that they can take note of its content as part of the normal course of business (theory of absolute reception). If the registered letter cannot be delivered to the recipient and the postal clerk leaves a collection notice in the mailbox or post office box, the letter is deemed to have been received as soon as the recipient can find out about the letter through the collection notice (see also judgement 4A_471/2013 of 11 November 2013). This then either means the same day on which the collection notice was put into the mailbox if one can expect the recipient to immediately empty the mailbox, or usually the day after delivery of the collection notice. Whether and when the recipient actually takes note of the declaration of will does not affect its coming into force. The notice is not deemed to have been duly served if the sender was aware that the recipient is on holidays or absent.

In its judgement BGE 140 III 244 of 19 May 2014, the Federal Tribunal confirmed the principles of the theory of absolute reception and decided – contrary to current legal doctrine and presumably the practice at most of the cantonal courts – that the theory of absolute reception also applies when determining the beginning of the 30-day period during which the tenant can file a notice of opposition or a petition for extension in response to a termination letter. The theory of absolute reception takes account of the opposing interests of the parties, as the sender carries the risk of sending the letter until it enters the sphere of control of the recipient, while the recipient takes over the risk once it enters his sphere of control. In this case the date on which the letter entered the sphere of control of the tenant therefore determines the beginning of the 30-day period for filing opposition. As the letter could be collected from the post office counter on 13 January 2012, the opposition filed on 17 February 2012 was too late.

In the field of tenancy law, the Federal Tribunal has to date only allowed two exceptions to the theory of absolute reception in order to protect tenants, i.e. for the notice announcing an increase in rent pursuant to Art. 269d OR and for the service of a payment demand pursuant to Art. 257d para. 1 OR. In these cases the Federal Tribunal sided with the theory of relative reception, according to which the date of reception is deemed to be the date on which the recipient actually collects the notice at the post office counter or, if the letter is not collected within the seven-day collection period, the seventh and last day of this period.

3. Impact of this judgement on landlords and tenants

Landlords wishing to terminate a rental relationship should use the current official form for this purpose. Given the unambiguous wording of Art. 266l para. 2 OR, the Federal Tribunal could easily have come to a different conclusion and established the invalidity of the termination notice. Landlords are therefore well advised to only use current official forms and not to assume that an obsolete official form contains the same information as a current official form.

In order to avoid the risk of filing a petition too late, tenants whose rental relationship was terminated should note that the theory of absolute reception applies both to the calculation of the deadline for opposing the notice of termination (Art. 273 para. 1 OR) and for the filing of the petition to extend the rental relationship (Art. 273 para. 2 (a) OR). The periods for filing opposition to termination notices and petitions for extension start running from the date on which the termination notice enters the sphere of control of the tenant or his representative, i.e. the date given on the collection notice as the date when the letter can be collected from the post office.