Vorbehalt: Unter dem Titel der Orts- und Quartierüblichkeit besteht ein Mietzinsvorbehalt von 10%.

It's in my new flat contract and I just don't get it

Thank you!

This means that your landlord believes that the rent for the flat is 10% under the average rent in your neighbourhood. It's a formal statement that he wishes to put up the rent in the next few months/year. If he does you have 30 day to dispute. He then would have to proof that his action is justified.

I would recommend to join the "Mieterverband".

the burden of proof (of "undervaluation") lies fully on the landlords side, if he ever wants to exploit those 10%.

there are strict rules for him to do so.

he needs five objects (flats/houses) of comparison who:
1) ... are in the same neighbourhood.
2) ... have the same size.
3) ... are equal equipped.
4) ... are in the same condition.
5) ... are built in the same construction period.

if he fails to these five points on each of the five objects for verifiable comparison, he will never get the chance of the extra 10%.


Bundesgericht, Urteil vom 26. Oktober 2004:
"[...] Das Bundesgericht wies jedoch die Berufung mit der Begründung ab, dass diejenige Partei, die sich auf die Orts- und Quartierüblichkeit berufe, mindestens fünf vergleichbare Wohnungen vorzulegen habe, die in Bezug auf Lage, Grösse, Ausstattung, Zustand sowie Bauperiode im Wesentlichen die gleichen Merkmale aufweisen müssen wie die konkret zu beurteilende Mietwohnung. [..]"

Thanks to both of you!
Would you say that it's a sort of insurance clause on their part in case they decide they do want to put the rent up? It seems strange to me that they didn't increase the rent when they re-advertised the flat, so that it was set from the start?

yes.
this clause ("mietzinsvorbehalt") is often used to secure their rentability if "hypothekarzins" rates would decrease and they would have to reduce your rental fee. with "mietzinsvorbehalt", they have a sort of buffer if you request an adjustment due to falling mortgage rates.

it is not a very nice to put this in a contract, but allowed.

what you have on your side: as they put "mietzinsvorbehalt" in connection with "orts- und quartierü̈blichkeit" ("common rental fee in your neighbourhood"), the landlord will in most cases fail to prove this fact, because he has to prove it in detail.

if you still are a bit uncertain 'bout your landlord, become a member of http://www.mieterverband.ch. they provide information for tenants and legal help at reduced rates.

1. your flat/house looks sexier in the advert with a cheaper rental fee.
2. landlord thinks he is smart and could raise by 10% if he likes to.

i see no other reasons.

Hmmm, ok thanks for the help. I signed up to Mietvertrag last week actually so just waiting for the form to arrive by post now...

Why is it alll so complicated?!

To be honest, you were lucky this time. There are plenty of pitfalls in contracts and I would ask what clauses mean before you sign them.

you are always welcome boogaloo

hmmm... complicated? i never had to rent a flat in the UK or the US, so i cannot compare which is more complicated.
i think when it comes to contracts, most of them are a sort of complicated in one or the other way. and the foreign language does the rest of confusing.

after a few years (and contracts), becoming more and more fluent in german language, you will look back and think "was not that heavy at all"

Thanks, I didn't ask the Mietvertrag as I didn't join it in time unfortunately...that's why I posted it on here....and then I signed it after I got some responses. Thanks for the advice though.

Very true! And I look forward to that day