Rights and obligations of tenants and landlords

The rights and obligations of landlords and tenants are governed by the rental contract or the statutory provisions.

Contents

    Grant of use

    The landlord undertakes to let the rented property to the tenant in a usable condition for the duration of the tenancy agreement and to maintain it in this condition (art. 256 para. 1 CO).

    Deviating agreements to the detriment of the tenant are void if they are contained in pre-formulated general terms and conditions of tenancy or in tenancy agreements for residential and commercial premises (art. 256 para. 2 CO).


    Rent and deposit

    Obligation to pay

    The tenant undertakes to pay the landlord the agreed rent and the ancillary costs on the agreed dates.

    Determination of rent

    The rent cannot be set completely freely within the framework of the legal system. The regulations on unfair rent and the case law on this subject (art. 269 and art. 269a CO) impose limits on the setting of the rent. Usually the rent for residential and commercial premises is fixed and payable monthly or quarterly.

    The parties may agree on the indexation of the rent. The rent follows the national consumer price index of the Federal Statistical Office. Changes in the mortgage interest rate or the reference interest rate are not taken into account. The agreement of an indexed rent is only permissible if the tenancy agreement is concluded for a period of at least five years (art. 269b CO).

    A graduated clause may be agreed (art. 269c CO). The parties agree in the tenancy agreement that the rent will be increased by a fixed amount at certain times. Graduated rents are only permissible if the lease is concluded for at least three years, the rent is increased only once a year and the amount of the increase is fixed in francs.

    A combination of an indexation with a graduation of the rent is not permissible (BGE 124 III 57 E. 3a).

    In the case of commercial leases, the rent is sometimes calculated on the basis of the tenant’s turnover or a combination of basic rent and turnover rent is agreed.

    Accessory costs

    The tenant must only pay the accessory charges if he has specifically agreed this with the landlord (art. 257a para. 2 CO). If no ancillary costs are specified in the tenancy agreement or an all-inclusive rent including ancillary costs is agreed, all services of the landlord are included in the agreed price. In such cases, the lessor may not charge the ancillary costs separately to the lessee.

    If the payment of ancillary costs is agreed, the individual ancillary costs must be listed precisely in the tenancy agreement. Collective designations are not sufficient. The dissolution of collective designations or the introduction of new service charges is only possible by means of an amendment to the contract. The ancillary costs may be agreed as a lump sum or as payments on account and an annual statement (art. 4 para. 1 VMWG).

    The service charges are the landlord’s remuneration for services connected with the use of the rented property (art. 257a para. 1 CO). Accessory costs include, for example, heating, hot water and similar operating costs, as well as public charges arising from the use of the property. More details on the chargeable heating, hot water and energy costs are set out in art. 5 et seq. VMWG. Mortgage interest and building insurance premiums are not considered ancillary costs.

    For residential and commercial premises, the ancillary costs must correspond to the landlord’s actual expenses. The landlord must allow the tenant to inspect the receipts upon request (Art. 257b para. 2 CO).

    Security deposit

    If agreed, the tenant is obliged to pay the agreed security deposit. In the case of flats, the security deposit shall not exceed three months’ rent; in the case of business premises there is no restriction (art. 257e para. 2 CO). The security can be provided in the form of money or securities. A security deposit insurance can also be agreed.

    Security in money or securities must be deposited in a bank account in the name of the tenant (Art. 257e para. 1 CO).


    Obligation of the tenants to tolerate

    Inspections

    The tenant must allow the landlord to inspect the rented property if this is necessary for the maintenance, sale or re-letting (art. 257h para. 2 CO). Tenants must tolerate inspections, but they must be announced sufficiently in advance to enable the tenant to organise himself.

    Maintenance by the landlord

    The tenant must tolerate work by the landlord on the rented property if it is necessary to remedy defects or to repair or prevent damage (Art. 257h para. 1 CO). The tenant must grant the landlord access to carry out the work. In the event of longer absences, the landlord must ensure that access is made possible.

    Alterations and renovations by the landlord

    The lessor is entitled to make alterations and changes to the rented property during the term of the lease, provided they are reasonable for the lessee and the lease has not been terminated (art. 260 para. 1 CO).

    Such alterations and renewals go further than repairs. Whether they are reasonable depends on how the work affects the tenant. Alterations to residential or commercial premises which result in the rented property no longer conforming to the agreement in the tenancy agreement (enlargement, reduction, removal or displacement of walls, etc.) or heavy loads due to construction work are not reasonable.


    Minor maintenance

    The tenant must remedy defects that can be remedied by minor cleaning or repairs required for ordinary maintenance at his own expense in accordance with local custom (art. 259 CO).

    The cleaning of the rented property is therefore the responsibility of the tenant. Minor maintenance includes, for example:

    • Replacing baking trays
    • Replacing filters in the steam extractor
    • Replacing tooth glasses
    • Replacing shower hoses
    • etc.

    As a rule, repairs in the range of CHF 150.00 are to be paid for by the tenant. If a repair requires specialist knowledge, it is not the responsibility of the tenant but of the landlord.

    However, rental contract clauses that impose more than minor maintenance on the tenant violate mandatory law when renting residential and commercial premises and are therefore invalid (art. 256 para. 2 CO).

    If a defect in the rented property does not fall within the scope of minor repairs, it is the landlord’s responsibility to repair it. Clauses in pre-formulated general terms and conditions of tenancy or in tenancy agreements for residential and commercial premises which provide for more extensive repair obligations on the part of the tenant are null and void (Art. 256 para. 2 CO).

    If a tenant breaches his duty to clean and repair minor defects, he may be liable to pay damages to the landlord if the landlord suffers damage as a result (Art. 97 CO).


    Alterations to the rented property by the tenant

    The tenant may only carry out renovations and alterations to the object if the landlord has given his written consent (Art. 260a para. 1 CO). Without the landlord’s consent, the tenant may thus not carry out any alterations.

    If the landlord has not given his consent, he may demand the restoration of the original condition by the tenant or at his expense at the latest at the end of the tenancy. Changes made without consent may be grounds for termination. If the continuation of the tenancy is not reasonable, an extraordinary termination may be considered (art. 257f para. 3 and 4 CO).

    If the landlord has agreed in writing, the tenant is permitted to make the change. The lessor may only demand the restoration of the previous condition if this has been agreed in writing (art. 260a para. 2 CO). If the rented property has a considerable added value at the end of the tenancy as a result of the change, the tenant may demand compensation for this (art. 260a para. 3 CO). When a considerable increase in value exists is to be assessed in each individual case. Minor changes do not grant a right to compensation from the outset. The parties may agree that no compensation is due for the added value (BGE 124 III 149, E.4).

    If the tenant remedies defects on behalf of the landlord which are the responsibility of the landlord, or if the tenant carries out renovations or alterations on behalf of the landlord, the landlord must compensate the tenant for this. An agreement according to which the tenant bears the costs is void, as it is the landlord’s duty to maintain the rented property in a usable condition (art. 256 para. 2 CO).


    Subletting

    Subletting requires the landlord’s consent (Art. 262 para. 1 CO). The law does not require written consent, but for evidentiary reasons it is recommended that consent be given in writing.

    The landlord may not unreasonably refuse consent. Refusal of consent is permissible if the tenant refuses to disclose the terms of the sublease, the terms of the sublease are abusive in comparison to the main lease or the landlord suffers substantial disadvantages from the sublease (art. 262 para. 2 CO).

    The tenant is liable for ensuring that the subtenant does not use the rented property in a way other than he is permitted to do himself (art. 262 para. 3 CO). If the subtenant causes damage, the main tenant is liable to the landlord under the contract and the subtenant is liable outside the contract.


    Transfer of the tenancy

    The tenant of business premises may transfer the tenancy to a third party with the landlord’s consent. The consent must be given in writing (art. 263 para. 1 CO).

    If the lessor consents to the transfer, the tenancy is transferred to the third party in its present condition (terminated, not terminated). The third party takes the place of the previous tenant in the tenancy agreement (art. 263 para. 3 CO). Apart from this change of parties, the tenancy agreement remains unchanged. The tenant is jointly and severally liable with the third party for the rent, ancillary costs, etc. until the time when the tenancy ends or can be terminated in accordance with the contract or the law, but for a maximum of two years.

    The lessor may refuse consent to the transfer only for good cause (art. 263 para. 2 CO). The delimitation of when an important reason exists proves to be difficult in practice.



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