Hello EF,

I am hoping you might have advice, the tenant's association was not very helpful. If my neighbor upstairs is running a very noisy daycare, as a tagesmutter, that has a profoundly negative impact on my life, can I pursue any relief using the Nachbarrecht statute? I rent, they rent. The landlord knows about the situation and won't do anything about it; obviously they did not tell me when renting to me. I have a lease until Sept. 2015 and (according to landlord) have to find a nachmeiter if I want to move due to the disturbance (I don't want to move but getting desperate). I cannot find the person listed on any tagesmutter advert websites but do not know if the business is registered. Any thoughts?

Do they make noise before 7AM, between 12PM and 1PM, or after 7PM?

If not, then that's pretty much it.

Tom

Check with your local Mairie/townhall. They must be registered there to be official and they'll have a limit to the number of children they're allowed to look after.

Do you think the creche might be operated by your landlord's wife?

Your Gemeinde / Commune should be informed if they are running a business without planning permission, which seems likely.

Yes, but they are lying and saying it is all due to the 3-year-old that lives there, and the mieterverband said I can't make complaints about children running, jumping, etc...if they live there or are visiting family members.

No, I think it is operated by the woman who lives in the apartment. My landlord sent a warning, and then a letter telling them they would be asked to move if they continued making noise. Then he left the country and didn't do anything and stopped communicating.

I will go by the town hall this week!

But what if they are registered? The activity still has a very detrimental effect on my life - does the nachbarrecht apply in this case?

Who told you the neighbour was working as a tagesmutter? If you think that is what she's doing (rather than just looking after another child occasionally) then either she's got permission from the local council (Gemeinde / Commune) or she's doing it unofficially and if you tell them they should look into it, they're very strict here.

A few years ago my son (in Geneva) was desperate to find daycare and placed his daughter with someone who had two other children in her care and who'd said she was just waiting for the official certificate to work as a day-mother, she did have the paperwork to prove that she'd asked to go on the official list but hadn't yet received the actual certificate.
A few days later he got a phone-call from the local police to say that they'd 'raided' the place and if he didn't collect the child within the hour they'd be taking her into care!
Granny to the rescue, which is where she should have been in the first place....

You could ask around, see if any of your other neighbours are disturbed by the noise... then go back to the residents association.

No help there - neighbors above are never home, no one beside them, and we are the only ones below.

A tages/day mother can have as many as 5 children a day including her own. It's not law that you work through the commune, though she should be registered.

The type of business you can operate from your home is dictated by the zoning laws. The Gemeinde will have these. It may even be online.

Generally the issue is noise emissions.

Daycare is a business and this person if operating legally should be registered.
Go to the gemeinde and make noise. (the more information the better, for example, how many children do you think are there at a time?).

I will go to Gemeinde this week - never realized this was an option actually. However, if she is registered, and it is zone approved, and there are 5 or less children it still has a profoundly detrimental impact on my life. Can the nachbarrecht statute help me? I will employ legal counsel, if necessary. Sorry to sound like a broken record, but I want an easy, clean silver bullet.

Simple: move.

Tom

I would be happy to, at this point although I don't want to - my apartment is absolutely lovely except for the trolls upstairs. But I have to find a nachmeiter and can't in good conscience deceive someone about this situation. So I would have to find a very special family to move in (tuba-playing, roller-skating, elephant trainers) , and doubt I would find them in the 3-month notice period.

If they moved out & prostitutes moved in, which could be perfectly legal would it be a better solution?

Depends on the hormones.

If you know some prostitutes in need, I have a great place for rent.

Instead of finding a replacement tenant you could just pay the outstanding rental for the remaining months and move early. Then it's up to the landlord to find another tenant, not you.

True - but with a contract through Sept. 2015 that would cost ca. 24,000 chf!

Holly, when dealing with issues of neighborhood harmony, it's important to be very clear about what outcome you want as you approach the problem.

Do you want to work with the neighbor to try to reduce noise? Do you want to try to shut down the daycare operation? Do you want to use the situation to try to break your rental contract without penalties? Each goal would likely mean taking different approaches.

Be aware that children playing noisily is often seen as a different issue from a neighbor running his chainsaw, playing the trombone, or a dog barking.

Just an FYI, according to this article from the Tagi, in 2010 the Bundesgericht ruled that a creche is allowed in residential areas and that children playing loudly is expected:
http://upload.sitesystem.ch/B2DBB48B...88CA2CE21F.pdf

Lärmende Kinder gehören zu einer Wohnzone

Kinderkrippen in Wohngebieten sind zulässig. Den Nachbarn ist dem Bundesge- richt zufolge der Lärm spielender Kinder zuzumuten. Konkret lehnte das Ge- richt eine Beschwerde von zwei Anwoh- nern der Kinderkrippen des Kantonsspi- tals in Aarau ab.

(Roughly)

Noisy children belong in a residential zone

Creches in residential areas are permitted. According to the Federal Court, the noise of playing children is expected, the neighbors are being unreasonable. Specifically, the court rejected a complaint from local residents against the owners crèches of Kantonal hospital in Aarau.

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Now - the article speaks about a child care center set up in a Quartier, not a Tagesmutter situation in a flat, so I don't know how the ruling would relate to your situation. But based on the sparse info in the article, I would recommend researching the special case of childcare and noise from children playing before going further.

If the neighbor has already been granted permission to run a daycare, you might not have basis for a complaint. If the daycare set up is not permitted, though, that is a different issue.

If you choose to go down the legal route, be aware of the costs and get qualified legal opinion.

Compromise is often the most effective way forward with neighbors, and most people respond reasonably if approached reasonably, with the goal of working together rather than against one another.

You might also consider mediation - many communities provide this service at a smaller cost. Mediation is not necessarily binding, but it might prove useful. Getting both the neighbor and landlord involved in mediation, if possible, might be a good way forward.

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Honestly, were it me: I'd first try to work with the neighbor on solutions to reduce noise. If that does not work, because childcare issues can be fraught with emotion making a resolution more difficult, I would use the issue as leverage with the landlord with the goal of getting out of your rental contract early without financial penalty.

Hope a solution that is equitable to all can be found.