Hello all on this sunny autumn Sunday!

We are about to return to the UK next week. Hurrah - can't wait! We have cancelled our rental contract for our accommodation in Ticino, taking the standard three-month notice period into consideration. Our landlord accepted this without any problem and has already found new tenants to move in on 1 October. So far so good.

I now would just like to check one thing: we signed at the time (in May 2010) a standard rental contract from CATEF (Camera Ticinese dell'Economia Fondiaria). In this standard contract our landlord added an extra handwritten clause under the "observation box", stating that if we were to cancel the agreement between 31 May 2011 and 31 May 2012 we would have to pay a penalty of two months rent. And if we were to cancel the agreement between 31 May 2012 and 31 May 2013 we would have to pay a penalty of one month's rent.

As it happens we cancelled the contract in June 2011 (with an effective date of 30 September 2011), meaning we have to pay the landlord a penalty of two months rent for cancelling the rental contract. Yes - easy money if you can get it - especially with the new tenants moving in on 1 October.

The contract we signed was for an indefinite term and cancelled according to the rules of regulations of the contract. My question now is: under Swiss law, was the landlord entitled to add such penalty clauses in the rental contract?

Of course, we are fully responsible for signing the contract with the added penalty clause. I'm not disputing that - it's not like the landlord forced us to drink a bottle of grappa each before signing. However, my understanding was the penalty would be invoked if the landlord could not find any new tenants following our departure. This as the the landlord wasn't keen on having to go through the whole rigmarole of finding new tenants after only a sort period of time and potentially be out of pocket should he have been unsuccessful.

This morning we had a visit from the landlord and he advised us that the penalty would be deducted from the three-month deposit we paid, eventhough the new tenants are moving in 1 October 2011. I have to say I feel rather uncomfortable parting with CHF 6,000 under these circumstances. Fair enough if the landlord wouldn't have been able to find new tenants immediately and as a result be out of pocket, who knows for how many months, because of us cancelling the rental agreement. Clearly this is not the case and I now would like to know if under Swiss law adding such clauses to a rental contract is allowed in the first place or if we have any chance of disputing this handwritten added penalty clause. No doubt we don't, as we're only stranieri/ Ausländer/ étrangeres who shouldn't be so ungrateful after having been allowed to grace Switzerland with our presence for 18 months, but still... Any advice from the other Forum members would be greatly appreciated.

Buona domenica a tutti!

If the penalty cause is on both parties contract, then it's totally legal. Presumably you had the contract translated so knew about the clause. You could have struck it out at the time, however you might not have got the apartment. The time to negotiate is pre contract.

The hand-written penalty clause in the contract is null and void as it violates art. 164 of the code of obligations (CO). http://www.admin.ch/ch/e/rs/220/a264.html

In particular, take note of art. 264 par. 3 lit. b CO stating that any earnings the landlord has obtained from putting the object to some other use (renting it to another tenant) must be taken into account against the rent owing to him.

Art. 164 CO is mandatory law, so neither party may derogate from it. Therefore, the landlord could have required you to find a replacement tenant but he cannot impose any further obligations on you in case of an early termination of the tenancy.

I found the summary (in German) of a decision by the Cour de justice in Geneva confirming the nullity of such clauses.

http://www.mietrecht.ch/documents/Do...p_3_97_171.pdf

I hope you paid the three month's rent into deposit in your name and not in the landlord's name, which is illegal under art. 257 e CO http://www.admin.ch/ch/d/sr/220/a257e.html. If the account is in your name, the landlord can't withdraw the money without your consent.

Thanks very much for your reply, Calvin! I'm not sure though if these paragraphs and jurisprudence would apply to our case, as:
- we did cancel our rental agreement in accordance to the terms of the contract, whereas in the cases quoted the tenants failed to do this. (we did give our landlord the required three months notice, which was accepted by the landlord without any problem)
- and it was the landlord who found and accepted the new tenants, who are moving in on 1 October 2011. We can't take any credit for that.

We were hoping (most likely in vain) that there would be a Swiss law protecting tenants in Switzerland from being exploited by inserting handwritten clauses like this into a standard rental contract. As it stands the landlord seems to be perfectly able to cash in on double rent for a two-month period, monthly rent both from us as well as the new tenants moving in 1 October. The new tenants have signed a new contract with the landlord - they haven't "taken over" our contract. Again, we do admit signing the contract knowing this clause was in there. However, we thought the clause would only be invoked if the landlord wouldn't be able to find new tenants after we had moved out. Clearly this is not the case - the landlord is laughing all the way to the bank getting "double money".

At least the deposit is held in both our names (my girlfiend and I) in a UBS account . The landlord tried to make us to sign a release form for the full three month deposit this morning, but I refused saying I wanted my solicitor to look at this first. The landlord wants the full three month deposit to cover the two-month rent penalty, the final clean of the house (CHF 1,800, which we agreed to) and the extras. (water bill, communal sewer usage, boiler maintenance, communal boiler inspection, etc.)
According to our rental contract we should be charged for these "spese", as they're called in Italian, at least once a year, but only now have we been served a bill for the full rental period (1 June 2010 - 30 September 2011), so clearly that didn't happen in accordance with the signed contract.

Thanks again for your reply!

I would argue that the art. 164 CO applies to your case because the new clause basically transformed an open-ended contract into a three-year-fixed-term contract. The contract says you can terminate the contract by giving three month's notice any time you want but if you leave the house within the first three years you have to pay a penalty. That is just another way of saying that the contract has a minimum period of three years and in case of an early termination a penalty is to be paid. Any other interpretation would make it way to easy to circumvent Art. 164 CO which aims to protect the tenant.

As you have a solicitor working for you, he should be able to check the contract and the legal situation in detail. I doubt he will come to a different conclusion.

As to the extra charges, examine them carefully. E.g. maintenance costs ("boiler maintenance") cannot be claimed. To tell you the truth, I think your landlord is a bit of a crook.

I think the landlord is a F$*%!7& thief!

The Italian part should also have an equivalent of Mieterverband or ASLOCA? Their membership is around CHF85/-, their advice: priceless!

Only the landlords?


I've never seen so many laws for everything that in the end always results
in penalties = money. All kind of creatives laws done by lobbyists corrupt layers paid in euros.

Not only they had all the money in the world even are nec plus ultra hunger for more money. And as the swiss have the coffers full of money they paid and paid without any concern.

In several situations like that one you have here my swiss friends resolve it paying to avoid having a discussion. Something very impressive for me.

Regards

corrections:

*have
*lawyers

Thanks Nyonais. I have already found the Ticinese equivalent (Associazione Svizzera Inquilini) and will contact them in the morning. It may not lead anywhere, but at least we can say we have tried everything.

Just to top it all off, we have just found out the landlord and family plus dog were seen accessing the house last weekend when we were in England. They were spotted by our neighbours. Apparently the landlord was painting some of the woodwork outside the house and going inside the house as well. We only gave the landlord a key to the perimeter fence and house, so they could show around the property to prospective new tenants (we both travel a lot for work), but we did stipulate they would first contact us to notify us before gaining entry. Not once since we cancelled the contract in June did they contact us to say they were showing tenants around or that they were coming over to do maintenance to the property. The other neighbours also said they saw many different people accessing the house during our absence. Clearly we now have no trust left in them whatsoever. I specifically asked the landlord after this this morning and was told they only accessed the property once to show the cleaning company around to get a quote. Clearly we're dealing with some rogue traders. Well, we will fight this all the way now - we're very cross! I so can't wait to get back to England. I know England is not perfect, but at least I have always felt at home there.

Euros? Shome mishtake, shurely.

@Bergamo74 - take note of every unreasonable action, and be prepared to use it. When you do the handover, he'll probably try to sting you for all sorts of repairs. Hand that over to your insurer. They've loss adjusters who'll deal with the landlord.

Why not? You can write in almost anything you want in a contract as long as both parties agree and it's within the law. Typing vs writing doesn't invalidate a contract. You agreed to this at the signing.


This doesn't sound unreasonable to me. It's very common in Switzerland for the final bills to come in a few months late. So he's not THAT far off with last years bills. Especially if you gave him 3 months notice. He probably said "well, I'll just do the whole bill at the end."




I don't know, I don't see him being that unreasonable. This is just another case of expats "confirming" that "the Swiss are out to stitch up all the foreigners" myth. The OP agreed to this clause. So I don't see why the landlord should now be the bad guy.

Ok, he shouldn't have gone in the house without asking & he shouldn't have painted the outside fence without asking. But that's no reason to think he's the devil incarnate trying to screw the foreigners.

Close. It's a Swiss resident confirming that many landlords in Switzerland are out to stitch up tenants when they move out. Of course, the Swiss themselves and other long-term residents are well aware of this, and take appropriate steps - such as those I suggested.

Bergamo74, based on my experience of moving twice within Switzerland and dealing with two different landlords, I can definitely say that the sanest and the most accurate advice will come from Associazione Svizzera Inquilini.

Is it not reasonable that short let's pay a higher rent?

It's becoming clear why landlords prefer to rent to Swiss passport holders. every week there are threads about wanting to get out of contracts. The people were happy to sign to get the apartment, I really don't get it.

i wont comment whether it is legal or not, but i would offer another side to it. the clause may not just be there for loss of income due to void, but also the hassle of getting a new tenant and the work that involves, which the LL has now incurred due to you leaving earlier.

Is it? The clause was put in there at the very beginning not at the end of the contract. And the clause doesn't say the penalty is invalid if a tenant is found to move in right way. Maybe next time people can be aware and add that to the clause as well.

We rent out our house and the last thing I want is to "stitch up" my tenants when they leave. But I do want them to respect the contract they signed. If they want different clauses, conditions, etc we can (and do) discuss them at the beginning of the contract.

Our very first tenants left their 3 year contract after 8 months. That's fine. But they didn't want to let any potential new tenants visit. They had "too much going on". Where they trying to "stitch me up"? I even had people say "Why is your house on the market so long? What's wrong with it?" Nothing. The tenants just refused to show it & we could only show it 3 months later when they moved out. I had to pay the management company to advertise and show the house.

It works both ways, but if you go in thinking they are trying to "stitch you up" then you are going to "go in fighting". That's when things get unpleasant on both sides. Like now. The way I read it the owner was following what he thought they had agreed to* and the tenant came in fighting and bringing his lawyer into it.

*Apparently including that the owner takes care of the cleaning, which seem to be why he made the mistake of getting the cleaner in to quote without informing the tenant. That I agree was not a good move. The rest, I don't see the problem unless it's illegal, which I don't think it is. It could be. We will see when the OP checks with his lawyer.

I would just suggest that for future reference people check the contract with their lawyer before they sign.

Must say I know many property owners here who will not rent to foreigners arriving from abroad, not because they are racist, but because they've been messed around too many times. Much easier to rent to local people who have long term commitments and who understand what they are signing and how the system works. Sorry. Those prepared to take the risk will only do so if they can make a much higher return in the short term. Every time somebody cancels a contract early and makes life difficult for the owner to re-rent- makes this tendency worse. It's called business.

Maybe I should have looked a little bit closer yesterday but art. 267 par. 2 Co states quite clearly that these kind of penalty clauses are illegal:

2 Any clause whereby the tenant or lessee undertakes to pay compensation upon termination of the lease is void except insofar as such compensation relates to possible damage.

Thanks again, Calvin! You were absolutely right - your advice was spot-on. My Zurich-based solicitor has confirmed this clause is in breach with Swiss federal law and therefore null and void and not enforceable. He also confirmed that any Swiss canton cannot deviate from this legislation.

Do you know what the most shocking aspect is? At the time of signing the rental contract, the landlord said to us. "Trust me, this is a standard contract. I should know as I am a solicitor." Yes, I am not kidding you - the landlord who included this clause in the rental contract is a Swiss solicitor. Although business has been week recently, by own admission. I think I now know why that may be the case. My suggestion would be: back to law school...