{"id":1446,"date":"2023-07-14T08:26:44","date_gmt":"2023-07-14T06:26:44","guid":{"rendered":"https:\/\/moorlaw.digicube.dev\/rechtsgebiet\/unfair-rent\/unfair-rent-excessive-return\/"},"modified":"2023-11-19T20:31:12","modified_gmt":"2023-11-19T19:31:12","slug":"yield-excessive-return","status":"publish","type":"rechtsgebiet","link":"https:\/\/moor-law.ch\/en\/law-field\/rental-law\/unfair-rent\/yield-excessive-return\/","title":{"rendered":"Yield \u2013 Excessive return"},"content":{"rendered":"\n

Rent is deemed to be unfair if the landlord obtains an excess return (net yield) from the rented property (Art. 269 CO). The rent is not unfair if the rent for newer buildings is within the range of the cost-covering gross yield (Art. 269a lit. c CO).<\/p>\n\n

Net yield<\/h2>\n\n

The net yield is determined from the ratio of the net income (rental income less all costs) to the equity capital employed (purchase price or building and land costs less mortgages). This is the net return achieved on the equity capital employed.<\/p>\n\n

According to the recent case law of the Federal Supreme Court, the net return may not exceed the reference interest rate by more than 2% if the reference interest rate is 2% or less (BGE 147 III 14 E. 8.4). With a reference interest rate of 1.75%, the permissible net yield is a maximum of 3.75%; with a reference interest rate of 2%, a net yield of 4% is permissible.<\/p>\n\n

With a reference interest rate of more than 2%, the previous case law applies, according to which the return on the capital invested may not exceed the reference interest rate by more than 0.5% (BGE 123 III 171 E. 6a). With a reference interest rate of 2.25%, a net return of a maximum of 3.75% is thus permissible. There is thus a discrepancy between the calculation methods, which will have to be clarified by the courts.<\/p>\n\n

Gross yield<\/h2>\n\n

The gross yield is calculated from the ratio of the gross income (rental income minus heating and hot water costs) to the investment costs (purchase price or land and building costs). Obviously overpriced land, construction and acquisition costs are not taken into account (Art. 15 VMWG).<\/p>\n\n

According to previous case law, a gross yield is permissible which is not more than 2% higher than the reference interest rate (BGE 118 II 124 E. 5). In view of the ruling BGE 147 III 14, an adjustment of the practice with regard to the gross yield is conceivable. This will have to be clarified by case law.<\/p>\n\n

The gross yield only comes into question for properties that are not older than ten years. For older properties, the net yield is decisive.<\/p>\n\n

Procedure<\/h2>\n\n

To calculate the yield, the landlord\u2019s bookkeeping must be used. The evaluation of the bookkeeping and the determination of the investment costs can be very time-consuming.<\/p>\n\n

Once the permissible net or gross yield has been determined, it must be distributed among the flats according to an appropriate key (number of m2 or number of rooms). This results in the permissible rent for an individual flat. This rent is to be compared with the actual rent. If the actual rent is higher, the rent cannot be increased; if it is lower, an increase is possible.<\/p>\n\n

Burden of proof<\/h2>\n\n

According to the general rule of burden of proof, the person must prove a fact from the existence of which he derives rights (Art. 8 CC).<\/p>\n\n

In the case of a challenge of the initial rent, the tenant bears the burden of proving that an excessive income is obtained. In contrast, when contesting a rent increase, the landlord bears the burden of proving that there is insufficient income from the rented property.<\/p>\n\n

Since the evidence for the calculation of the permissible net or gross yield is with the landlord, the landlord is obliged to disclose the calculation basis to the tenant (BGE 4A_554\/2019 E. 6; BGE 142 III 568). If the landlord refuses to disclose the receipts (in full), this can be interpreted as an indication of an unfair rent.<\/p>\n\n

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