The customary local or neighbourhood rent is an absolute criterion to determine if the rent is permissible or unfair.
Local custom rent as restricted market rent
Local or neighbourhood rents suggest a market rent. However, it is not a rent that is determined by supply and demand, but rather the rent that is paid for comparable properties in the same municipality or in the same neighbourhood of a city.
Comparison criteria
Comparable rental properties are only if they are similar in terms of location, size, condition, equipment and construction period (Art. 11 VMWG, BGE 123 III 317 E.4.b).
Location: The comparable properties must be located within the same locality or neighbourhood. They must have comparable advantages or disadvantages (floor, light/sunlight, view, quiet, noise, public transport, etc.). The location also includes the type of property (terraced house, apartment building, number of flats in the house, etc.).
Size: The number of rooms or square metres and the room layout are decisive.
Equipment: This refers to the equipment of the rental property (TV cable connection, kitchen, dishwasher, bathroom, second bathroom, fireplace, etc.).
Construction period: The age of the building must be taken into account. The comparable properties must be from the same period.
Burden of proof
The party (usually the landlord) who claims that the rent is customary in the locality or neighbourhood must prove that the rent is customary in the locality or neighbourhood. According to the Federal Supreme Court, five comparable objects have to be indicated (BGE 123 III 317 E.4.b). It is not easy to prove this successfully. If the initial rent is contested, the tenant has to prove that it is customary in the locality or neighbourhood; if the rent is increased, the landlord has to prove it if he invokes this criterion.
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