When tenants and landlords correspond on crucial matters, delivery and reception are crucial for triggering or preserving deadlines. Delivery and reception trigger deadlines and are relevant in the following situations:
- Termination
- Termination threat
- Rent increase
- Conciliation authorities and courts
Reception theory
If a registered mail item is received and signed for by the recipient during the first delivery attempt by the postal service, it is considered delivered at that moment.
Reception theories become relevant when a registered mail item is not immediately received and/or not collected before the expiration of the pickup deadline.
In tenancy law, both absolute and relative reception theories are applied.
According to the absolute reception theory, a registered mail item that is not immediately received is considered delivered when the recipient can first pick it up at the post office. This is usually the next working day. The mail carrier leaves a pickup notice in the mailbox, indicating when the item can be collected for the first time. If the item is not collected on this initial opportunity, it is still considered delivered (fiction of delivery).
According to the relative reception theory, a registered mail item that is not immediately received is considered delivered after a seven-day pickup deadline if it is not collected by then (fiction of delivery).
After the expiration of the pickup deadline, the recipient cannot collect the item from the post office, and it will be returned to the sender. The recipient should inquire with the post office about the sender and then inquire with the sender about the contents of the mail item (BGE 143 III 15 E.4).
Overview
| Absolute Reception Theory | Relative Reception Theory |
| Termination BGE 143 III 15 | |
| Termination threat (Art. 257d CO) BGE 137 III 208, confirmed in BGer 4A_451/2011, E.3.1 | |
| Notice of rent increase (Art. 269d CO) BGE 107 II 189, E.2, BGE 137 III 208, E.3.1.3 | |
| Deliveries from arbitration authorities or courts (Art. 138 para. 3 CPC) |
Termination
Reception theory
In the case of terminations, the absolute reception theory applies (BGE 143 III 15). If the termination is not immediately received at the first delivery attempt, it is considered delivered on the first day when the mail item can be picked up at the post office (fiction of delivery).
The receipt or fiction of delivery on the first possible day of picking up the termination triggers the deadline for contesting the termination or applying for an extension (Art. 273 para. 1 and 2 CO).
If a party intends to terminate the tenancy, they should consider the possibility that the termination letter may not be immediately delivered but must be collected at the post office.
Married couples and registered partnerships
If the landlord intends to terminate the lease agreement for an apartment occupied by a married couple or a couple in a registered partnership, the termination must be separately delivered to both partners (Art. 266n CO). Failure to comply with this provision renders the termination invalid (Art. 266o CO).
If one of the partners is at home during the first delivery attempt, the termination letters are usually handed over to both partners in the vast majority of cases. The deadline for contestation or extension begins on the day following receipt.
If neither partner is at home, a pickup invitation is placed in the mailbox. The terminations are considered delivered on the first day they can be collected at the post office (fiction of delivery). The deadline for contestation or extension begins on the day following the fictitious receipt.
If, exceptionally, the termination letter is received by one partner by the mail carrier, but the one intended for the other partner is not, a distinction must be made.
If there is no instruction to the post office that the partner in the same household should not accept registered mail items on behalf of the other partner, the non-receipt of the letter by the partner can be considered an express refusal of acceptance. An express refusal of acceptance is deemed as receipt.
However, if the partner in the same household has instructed the post office not to accept registered mail items on their behalf from any other household member, there is no express refusal of acceptance.
Therefore, there is a (theoretical) possibility that the termination was delivered to one partner on the last day of the month but to the other partner only in the following month. This has consequences for the start of the termination period and the deadline for contestation or extension of the tenancy.
Cohabiting couples and other groups of tenants
Cohabiting couples are generally considered a simple partnership.
The termination by the landlord to cohabiting partners does not need to be separately delivered to each partner. It is sufficient if the termination mentions both cohabiting partners and is delivered to one of them. If the termination cannot be delivered during the first attempt, the absolute reception theory applies.
The termination by the cohabiting partners must be signed by all cohabiting partners. Alternatively, one partner can terminate, but they need a power of attorney from the other partner.
The same applies to other groups of tenants since they usually form a simple partnership concerning the tenancy.
Termination threat
If the tenant is in arrears with the rent, the landlord can set a payment deadline and threaten termination in case of non-payment. If the payment is not made, the landlord can terminate the lease (Art. 257d Swiss Code of Obligations).
Reception theory
If a threat of termination is directly received, it is considered delivered, and the payment deadline begins on the day following the delivery.
If the termination notice is not received, the relative reception theory applies according to the case law of the Federal Supreme Court (BGE 137 III 208, confirmed in BGer 4A_451/2011, E.3.1). The uncollected termination notice is considered delivered only at the expiration of the pickup deadline, and the payment deadline starts on the day following the last day of the pickup deadline.
Married couple or registered partnership
The landlord’s termination notice to a married couple or a couple in a registered partnership must be sent with separate letters to each partner (Art. 266n CO).
If the termination notices are delivered simultaneously, the payment deadline begins on the day following the delivery. When they are not collected, the payment deadline begins on the day following the last day of the pickup deadline (relative reception theory).
If the termination notices are received or collected on different days, this has consequences for the start of the payment deadline.
Cohabitation and other groups of tenants
For cohabiting couples or other groups of tenants in a simple partnership, it is sufficient to deliver the threat of termination to one of the tenants, as long as all tenants are mentioned in the notice.
Rent increase
Rent increases and other unilateral changes to the contract by the landlord must be communicated to the tenants using an official form, at least ten days before the start of the termination period (Art. 269d CO).
According to the case law of the Federal Court, the relative reception theory applies to the notification of a rent increase (BGE 107 II 189, para. 2, BGE 137 III 208, para. 3.1.3).
Service of documents by conciliation authorities and courts
Regarding the service of documents by conciliation authorities and courts, art. 138 CPC applies. The service can trigger a deadline, e.g. a deadline for submitting a statement, the deadline for appealing to the rent court, or a deadline for filing an appeal.
Unclaimed registered mail is considered delivered on the seventh day after an unsuccessful delivery attempt, provided that the recipient could expect a delivery (art. 138 para. 3.a. CPC). Consequently, the relative reception theory applies to unclaimed deliveries.
Further reading
