If the rental object has defects that the landlord has to remedy, the tenant can request that the defect be remedied and a reduction in rent until it is remedied as well as deposit the rent. In contast, the tenant has to bear the minor maintenance.
Defects
Defects of the rented property are deviations from the condition owed in accordance with the rental contract and which the landlord must rectify. Minor defects which the tenant has to remedy himself within the scope of minor maintenance are not considered defects. Normal wear and tear is also not deemed to be a defect, provided that the suitability for the intended use is not impaired.
Defects before handover
The lessor has to hand over the rented property at the agreed time in a contractually compliant, defect-free condition. The lessor must rectify existing defects and clean the rented property before handing it over.
If the lessor takes over the rented property despite the existence of defects which reduce but do not substantially impair or preclude the intended use, or if he takes over the rented property with minor defects which fall within the scope of minor maintenance (Art. 259 CO), the lessor may assert the claims under Art. 259a to 259i CO (Art. 258 para. 3 CO). In particular, the removal of the defect and the reduction of the rent are possible.
If the tenant takes over the rented property despite defects which exclude or considerably impair its suitability for the intended use, he may insist on performance of the contract and assert claims under Art. 259a to 259i CO (removal of defects, reduction of rent, etc.) or withdraw from the contract (Art. 258 para. 2 and Art. 258 para. 1 CO in conjunction with Art. 107 to 109 CO).
Defects after handover
If, after handover, defects arise in the rented property for which the tenant is neither responsible nor able to remedy at his own expense, or if he is disturbed in the use of the rented property in accordance with the contract, he may demand that the landlord (Art. 259a para. 1 CO):
- remedy the defect
- reduce the rent proportionately
- pay damages
- take over the legal dispute with a third party
the lessor of immovable property may also deposit the rent (Art. 259a para. 2 CO).
If the tenant or a person for whom he is responsible (visitor, flatmate, workman on behalf of the tenant, etc.) has caused the defect intentionally or negligently, the tenant is not entitled to the defect rights. Instead, he/she must remedy the defect himself/herself or have it remedied at his/her own expense.
Disturbances in the use of the rented property which trigger the rights for defects can be, for example, construction noise from a building site in the vicinity of the rented property.
Duty to inform
If a defect arises in the rented property that has to be remedied by the landlord, the tenant must inform the landlord (Art. 257g CO). If the tenant fails to do so, he may be liable to pay compensation if the landlord suffers damage as a result.
Rights of the tenants
Removal of the defect
The tenant may demand that the landlord remedy the defect (Art. 259a para. 1 lit. a CO). If the landlord does not remedy the defect, the tenant may take legal action to have the defect remedied.
If the removal of the defect is not possible, for example because the landlord has no influence on it (e.g. construction noise), there is no claim for removal. All that remains is a claim for a reduction of the rent and, if the conditions are met, for damages.
Substitute performance
If the defect reduces the suitability of the rented property for the intended use, but does not substantially impair it, the tenant may, if the landlord refuses to remedy the defect within a reasonable period of time, have it remedied or have it remedied at the landlord’s expense (Art. 259b lit. b CO). Authorisation by the judge is not required. If the preconditions are not fulfilled, an unauthorised substitute performance may result in the landlord not being obliged to reimburse the costs to the tenant. Whether the prerequisites are fulfilled (defect, reasonable period of time to remedy, refusal to remedy) must be examined in each individual case. Tenants are advised to clarify the requirements in advance.
Under certain circumstances, the tenant may be authorised by the court to remedy serious defects which considerably impair or exclude the suitability for the intended use at the expense of the landlord (Art. 98 CO).
In the case of such serious defects, the tenant may also terminate the contract without notice and claim damages (storage of furniture, hotel accommodation, etc.).
Reduction of the rent
If the suitability of the rented property for the intended use is impaired or reduced as a result of a defect, and if the landlord is responsible for this defect, the tenant may demand a reduction of the rent from the time when the landlord became aware of the defect until the time when the defect has been remedied (Art. 259d CO). Fault on the part of the landlord for the defect is not required.
Damages
If the tenant suffers damage due to the defect, the landlord must pay compensation unless he proves that he is not at fault (Art. 259e CO).
This requires:
- a defect for which the lessor is responsible
- damage suffered by the tenant (as a result of the defect)
- a causal connection between the landlord’s act or omission contrary to the contract
- fault on the part of the landlord (legal presumption)
Deposit of the rent
Depositing the rent requires (Art. 259g para. 1 CO):
- a defect which is not to be remedied by the tenant
- written notice of a reasonable period of time for the landlord to remedy the defect
- written threat by the landlord to deposit the rent if the defect is not remedied by the expiry of the deadline
- failure by the landlord to remedy the defect
- Notification of the deposit of the rent to the lessor.
If these conditions are met, the rent together with the ancillary costs for the future may be deposited in whole or in part with the competent authority.
The tenant must appeal to the competent conciliation authority within 30 days of the (first) deposit and sue for rectification of defects, reduction of the rent and damages. If the tenant does not submit a request for arbitration or submits it late, the deposited rent and ancillary costs fall to the landlord and are paid to him (Art. 259h and 259i CO in connection with Art. 208 para. 4 CCP).
If the defect is remedied by the landlord, the deposit of the rent is not admissible. The same applies if the landlord has already initiated the rectification of the defect.
Termination without notice due to serious defects
The landlord is obliged to hand over the rented property in a condition suitable for the intended use and to maintain it in this condition for the duration of the tenancy (Art. 256 para. 1 CO).
If there is a serious defect in immovable property (living quarters, business premises, etc.) which precludes or substantially impairs its fitness for the intended use, the tenant may terminate the tenancy without notice if the landlord fails to remedy the defect within a reasonable period. In the case of movable property, a reduction in the fitness for the intended use is sufficient (Art. 259b lit. a OR).
For the tenant to be entitled to terminate the lease without notice, the following conditions must be met:
- serious defect for which the tenant is not responsible
- knowledge of the landlord
- Failure to remedy the defect within a reasonable period of time.
If the prerequisites are not met, termination without notice is not permitted. If the tenant (in ignorance of the legal situation) has nevertheless terminated the lease, his termination is invalid. In order to be clear that it is not a case of termination without notice for other reasons, the reason for termination should be stated in the termination letter.
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