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Old 02.06.2008, 09:22
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Mietzins-Depot - Landlord Refuses to Release

Apologize for starting a new thread and although this problem has been discussed before, this situation has a new twist. I am looking for advice from the collective wisdom here.

The property (Kanton Aargau) is privately owned by a husband and wife. The house was given back at the end of April and only the husband attended the inspection, not the wife. The tenant brought someone from the Mieterverband. There was one thing on the inspection report, replacement of the shower hose which had a split in it.(connecting faucet to the shower head). The protokol says there is otherwise nothing owing and it is signed.

The rent deposit is in the tenant's name at a bank, and only the owner's wife's name appears on the bank papers. At the time of the inspection, the husband says his wife will sign the paper that evening, which was already signed by the tenant, and send it along to the bank. The Mieterverband rep is satisfied. The tenant purchased the shower house within an hour and delivered it personally to the owner (husband). New tenants were already waiting to take the house over. Owner was going on vacation that evening so he was in a big hurry to get all dealt with.

Weeks pass and the deposit money is still sitting in the bank. The tenant tries to contact the owner to find out what is going on and finally reaches him. It was 3 weeks after the house was given back. The owner says he has found some things wrong and wants to be paid for them. He says the shower faucet is leaking, this being the same faucet that he checked and said a hose is required. Second thing he says the lawnmower is broken. He never even checked the garden shed or its contents at the inspection.

His position is that he wants to be paid and his wife is refusing to sign the bank papers to release the deposit.

The law does not appear to be on the owner's side. He had the opportunity to conduct a full inspection, which he did. He left for vacation the evening the house was returned so the new tenant must have these things to the owner after he got back from vacation.

The owner made no attempt to contact the tenants regarding the deposit money. He also did not contact them to tell them there were any problems. The tenants sent the owner a registered letter saying they will accept no further claims. The owner says the tenants must talk to his wife who is refusing to sign the bank papers.

The Mieterverband has been absolutely useless. They say they can do nothing here and the tenants have to take the owner to the Schlichtungsbehoerde (mediation). Of course you can pay someone from the Mieterverband to accompany you. The tenants paid 150 chf for the Mieterverband to attend the inspection and ensure that all went well. Clearly that hasn't happened.

Questions:
1. Does the owner have any legal claims against the tenant almost a month after a protokoll has been signed that reported all in order (with the exception of one item that was replaced)
2. Does the tenant have any other options other than mediation?
3. Would the husband's signature have been accepted at the bank considering the lease is in both the husband and wife's name?
4. How can the husband act on behalf of both husband and wife at the protokoll but then tell the tenants to communicate with the wife on the deposit.

Any advice would be greatly appreciated.
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Old 02.06.2008, 09:39
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Re: Mietzins-Depot - Landlord Refuses to Release

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Questions:
1. Does the owner have any legal claims against the tenant almost a month after a protokoll has been signed that reported all in order (with the exception of one item that was replaced)
2. Does the tenant have any other options other than mediation?
3. Would the husband's signature have been accepted at the bank considering the lease is in both the husband and wife's name?
4. How can the husband act on behalf of both husband and wife at the protokoll but then tell the tenants to communicate with the wife on the deposit.
From recent experience I do know:
1. If the protocol has been signed by the owner as accepted, you should have a copy of this yourself.
2. If the owner does not release the rental-deposit at the bank, it still continues to collect interest.
3. One year from accepting the apartment from you (according to document from number 1) the Bank is required to release the deposit back to you, with all interest.

There is a Swiss law for number 3, I don't have it available on top of my desk! I did speak with a lawyer and he did show me the law in the three inch thick book.

Normally, once signed, the acceptance document allows for a grace period. Do you remember... When you moved into the apartment and signed the acceptance form... you had thirty days to list and discrepancies that were not noticed on the first look-through.

However, faults that belong to items mounted in the apartment are the responsibility of the landlord to fix or replace. The leaking faucet, a month later, would be an item for discussion with a lawyer. Most communities offer free lawyer services/advice one afternoon/evening a month. Check with your city hall for details or direction of who would be best to help with your dilemma.

Keep us informed of the outcome, the information you provide may help out another EF member or prevent any future hassles.

Good luck!
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Old 02.06.2008, 09:42
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Re: Mietzins-Depot - Landlord Refuses to Release

Distressing that the MieterVerband is ineffective.

Some Swiss district courts (my experience is only in ZH) have a free legal clinic, where advice on tenancy conflicts can be obtained.

Alternatively, take a hard line. Consult an advocate. He/she can send a lawyer's notice to the landlord threatening pursuit (Betreibung). That should convince the landlord to refund the deposit.
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Old 02.06.2008, 10:14
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Re: Mietzins-Depot - Landlord Refuses to Release

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From recent experience I do know:
1. If the protocol has been signed by the owner as accepted, you should have a copy of this yourself.
Yes, the tenant has a copy.
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2. If the owner does not release the rental-deposit at the bank, it still continues to collect interest.
Interest earned is negligible. The deposit is 3,000 chf.
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3. One year from accepting the apartment from you (according to document from number 1) the Bank is required to release the deposit back to you, with all interest.
Yes, have read this before but it seems unfair for the tenant to have to wait for their money just because the landlord is a jerk. It is not the landlord's money so of course he doesn't care.

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Normally, once signed, the acceptance document allows for a grace period. Do you remember... When you moved into the apartment and signed the acceptance form... you had thirty days to list and discrepancies that were not noticed on the first look-through.
It's not 30 days from when you take on an apartment, it's 10 days for the tenant to find the problems, at least in Kanton AG. However, for the inspection when leaving, the law says that there is a short grace period but in this period only things the landlord could not have found when he inspected the house would be permitted. This is not the case here. The landlord inspected the faucet in question personally, which was not leaking at the time of the inspection, and he decided the hose needed replacing after he found a tear in it. He never even ran the water. He was standing right in the shower.
As for the lawnmower, the owner never went to the garden shed to check the inventory or inspect. The garden shed is beside the front door. He had ample opportunity to check it.

As a member of the Mieterverband you also get free legal advice...it's just a question of trying to reach them. The tenant thinks as they paid the Mieterverband rep 150 chf to attend the inspection, they should have been protected from this kind of crap.

I steer my clients well clear of private owners and it is situations like this which confirm what I have always felt, that private owners who rent houses are a nightmare to deal with.
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Old 02.06.2008, 10:23
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Re: Mietzins-Depot - Landlord Refuses to Release

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Distressing that the MieterVerband is ineffective.
Considering that the Mieterverband person attended the inspection, this really shows how useless they are. He could have told the husband to sign the bank form. I am almost positive in this situation it would have been accepted as the owners are husband and wife. Years ago I signed to release the deposit which was only in my husband's name and it was no problem.


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Some Swiss district courts (my experience is only in ZH) have a free legal clinic, where advice on tenancy conflicts can be obtained..
I think the Schlichtungsbehoerde, where landlord and tenant disputes are taken, will provide limited advice - they inform you of the law - but that is it. You have to submit a letter to them and wait for a hearing date.

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Alternatively, take a hard line. Consult an advocate. He/she can send a lawyer's notice to the landlord threatening pursuit (Betreibung). That should convince the landlord to refund the deposit. ..
No, this cannot be done. The Mieterverband rep also said this is possible but he is wrong. The Mieterverband lawyer that the tenant has already consulted said this cannot be done. The landlord doesn't actually have the money, just the power to release it.

It has been said the law is an ass....ain't that the truth.
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Old 02.06.2008, 10:35
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Re: Mietzins-Depot - Landlord Refuses to Release

WTF?

You seem to have all the answers... are you just here to waste our time?
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Old 02.06.2008, 10:36
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Re: Mietzins-Depot - Landlord Refuses to Release

errhmm, I beg to differ,we are private landlords and rent out flats and live in the same appt.block, I'd gladly let you ask ANY of our past and present tenants about the climate etc in the house . NOT ALL private landlords are ****s!

As for the deposit money, there was already a flaw at the signing process, when two people have signed for it then the same two people have to sign again to release the money:

This is the article of the Swiss Obligationenrecht,as it is not available in english I try to translate it ( in italic style)


Art. 257e

II. Sicherheiten durch den Mieter
1 Leistet der Mieter von Wohn- oder Geschäftsräumen eine Sicherheit in Geld oder in Wertpapieren, so muss der Vermieter sie bei einer Bank auf einem Sparkonto oder einem Depot, das auf den Namen des Mieters lautet, hinterlegen.

Securities by the tenant
If the tenant of living or business premises is rendering a security,the landlord or the agency have to deposit this money onto a 'locked' bankaccount (sperrkonto),which is opened in the name of the tenant.


2 Bei der Miete von Wohnräumen darf der Vermieter höchstens drei Monatszinse als Sicherheit verlangen.

Upon renting of premises to live in (an appartment) the landlord can only charge THREE monthly rents MAXIMUM as a security to the tenant.


3 Die Bank darf die Sicherheit nur mit Zustimmung beider Parteien oder gestützt auf einen rechtskräftigen Zahlungsbefehl oder auf ein rechtskräftiges Gerichtsurteil herausgeben. Hat der Vermieter innert einem Jahr nach Beendigung des Mietverhältnisses keinen Anspruch gegenüber dem Mieter rechtlich geltend gemacht, so kann dieser von der Bank die Rückerstattung der Sicherheit verlangen.

The bank can only pay out the deposit with agreement of BOTH parties,or based on a legal payment summons or a valid adjudgement of a court.
If the landlord has,within a year of finishing the lease,not made any lawful claims towards the tenant,the latter can then ask the bank to pay out the deposit.


4 Die Kantone können ergänzende Bestimmungen erlassen.

The cantons can create additional provisions
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Old 02.06.2008, 11:15
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Re: Mietzins-Depot - Landlord Refuses to Release

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errhmm, I beg to differ,we are private landlords and rent out flats and live in the same appt.block, I'd gladly let you ask ANY of our past and present tenants about the climate etc in the house . NOT ALL private landlords are ****s!
Sorry, point taken, you are right, I shoud have said some private owners. Agencies can also be difficult though in my experience, they have never tried to pull a stunt like this.

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As for the deposit money, there was already a flaw at the signing process, when two people have signed for it then the same two people have to sign again to release the money:
By signing process, you mean, at the inspection when the house was returned. The rent account was opened at the bank in the name of the tenant and the signature of the landlord (wife). So as it was the wife whose signature appeared on the account holding the rent, she should have attended the inspection and signed the bank form then and there. Here husband gave his word it would be done that evening. Guess this wasn't good enough.

I am sure it will cost the tenants more to go through the legal process than to wait the one year. Thanks for the advice.
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Old 02.06.2008, 11:27
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Re: Mietzins-Depot - Landlord Refuses to Release

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WTF?

You seem to have all the answers... are you just here to waste our time?
No, not wasting anyone's time, as you implied. Just trying to see if anyone here has encountered a similar situation and how it was resolved. Possibly you may not have noticed that I contribute to this forum by answering questions and sharing my experiences. Isn't that what we are all here for? Does anyone one of us always have all the right answers? Clearly not. That's why we exchange information.

As you said, if other EF members can avoid this hassle, then no one's time has been wasted.

The lesson here is make sure the person who is authorized to sign for the release of the funds is at the inspection. Experience is the best teacher.
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Old 02.06.2008, 11:54
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Re: Mietzins-Depot - Landlord Refuses to Release

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Experience is the best teacher.
Cannot agree with you more.
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Old 02.06.2008, 13:35
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Re: Mietzins-Depot - Landlord Refuses to Release

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By signing process, you mean, at the inspection when the house was returned. The rent account was opened at the bank in the name of the tenant and the signature of the landlord (wife). So as it was the wife whose signature appeared on the account holding the rent, she should have attended the inspection and signed the bank form then and there. Here husband gave his word it would be done that evening. Guess this wasn't good enough.
.

Exactly! Unless the husband has power of attorney or however this is called in regards to dealing with banks,only the person who has initially signed the paper , is the one who is able to release the money too from the account.

That said, I have to add that this is HOW WE handle that in regards to our porperty and tenants.It might be a different case in another canton ......
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Old 02.06.2008, 16:09
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Re: Mietzins-Depot - Landlord Refuses to Release

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I think the Schlichtungsbehoerde, where landlord and tenant disputes are taken, will provide limited advice - they inform you of the law - but that is it. You have to submit a letter to them and wait for a hearing date.
I have gone through this mediation process to resolve a tenancy conflict. I was the aggrieved tenant. First, I went to the appointment with the court's free legal advice team. The team assessed my standpoint as valid and advised me to submit an application to the court of mediation.

Some weeks later the mediation was heard by a panel of 3. The mediation turned into a farce because the landlord's representative refused to submit certain relevant documents. That refusal attracted some harsh remarks from the panel. But the mediation panel is powerless because it cannot insist on disclosure and its findings are not binding.

Prerequisite for mediation is some goodwill from the adversarial parties and common desire to avoid litigation. Mediation fails when one side is arrogant and has more firepower to litigate.
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Old 02.06.2008, 16:20
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Re: Mietzins-Depot - Landlord Refuses to Release

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I steer my clients well clear of private owners and it is situations like this which confirm what I have always felt, that private owners who rent houses are a nightmare to deal with.
Hence your opinions about private landlords are biasing your advise to your clients.
Those private landlords who know what they're doing and have a professional attitude towards their investments and their tenants are often some of the best to rent from, as opposed to faceless, impersonal corporations.

Barbra.
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Old 02.06.2008, 20:54
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Re: Mietzins-Depot - Landlord Refuses to Release

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Hence your opinions about private landlords are biasing your advise to your clients.
Those private landlords who know what they're doing and have a professional attitude towards their investments and their tenants are often some of the best to rent from, as opposed to faceless, impersonal corporations.

Barbra.
-------

I agree and disagree as well. Corporations are impersonal for sure and try to use a lot of power etc. But with private owners it really depends on who you get as well so i think either one can be tough if you run into a bad company or a bad person.
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Old 02.06.2008, 20:57
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Re: Mietzins-Depot - Landlord Refuses to Release

[QUOTE=Mrs. Doolittle;237528]Considering that the Mieterverband person attended the inspection, this really shows how useless they are. He could have told the husband to sign the bank form. I am almost positive in this situation it would have been accepted as the owners are husband and wife. Years ago I signed to release the deposit which was only in my husband's name and it was no problem.



--

A bit surprised at the mieterverband's inability to solve this one but this means that the release of the funds is a problem.

Am soon likely to be in a similar situation so this is scary.
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Old 02.06.2008, 21:00
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Re: Mietzins-Depot - Landlord Refuses to Release

I am sure it will cost the tenants more to go through the legal process than to wait the one year. Thanks for the advice.[/QUOTE]
-----

I guess this one year wait is a given...the problem is really huge for people who are leaving CH...in terms of getting the deposit back.

This is the same as New York...getting the deposit back is a nightmare, in case anyone has had any experience.
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Old 02.06.2008, 21:27
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Re: Mietzins-Depot - Landlord Refuses to Release

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I think the Schlichtungsbehoerde, where landlord and tenant disputes are taken, will provide limited advice - they inform you of the law - but that is it. You have to submit a letter to them and wait for a hearing date.
I have gone through that process both as a tenant and as representative for a (commecial premises) landlord.

You should be getting the date fairly quickly, in some cases the official letter from the Schlichtungsbehoerde is actually enough for some landlords to release the deposit.

Usually, the Schlichtungsbehoerde is seen as a mediatior and tries to strike deals. In your case however seeing that the "Uebernahmeprotokoll" had been signed by the landlord and a Mieterverband representative was present, the panel might very well suggest the full deposit to be paid back within a certain amount of time.

In any case, if either party do not follow the panel's suggestion, you can then take it to the "small claims court".

It's a drag but you're in the lucky situation of actually having a Uebernahmeprotokoll. I've lost count of people telling stories about not having done those...
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Old 03.06.2008, 13:09
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Re: Mietzins-Depot - Landlord Refuses to Release

Here is an update on the situation.

The lawyer for the Mieterverband has said the tenant's case is rock solid with a signed Uebernahme protokoll that says all is fine (except for the shower house which the tenant purchased and immmediately gave to the landlord (within an hour) after the inspection.

The lawyer said that had the landlord found a hidden defect, something that could not have been found at the inspection, this might be an issue, but otherwise the landlord has no chance. The items he is complaining about were inspected or could have been seen by him. The fact that these only came to light weeks after the protokoll when the tenants tried to contact the landlord makes it look very bad for him. The tenants sent the landlord a registered letter which he refused to collect at the post office and was returned to the tenant. This makes the landlord look even worse.

All documents will be submitted to the Schlichtungsbehoerde which if you do yourself without a lawyer doesn't cost anything. Once submitted they send everything to the landlord and he must respond. If the parties reach a deal, and they really encourage that, you don't go to mediation. But if the parties don't reach an agreement, the next step is mediation, a date possibly before the summer break. As someone pointed out, the panel cannot make a legally binding decision, but they can make a recommendation, which in this case the lawyer said will be that the landlord must sign for the release of the funds. But they cannot force him to do so.

The laywer explained that if the landlord does not agree with the recommendation, which is his right, the lawyer will then write a letter to the landlord that the matter is going to court. The cost of this consult and letter is covered by the Mieterverband fees. If the mediation process didn't convince the landlord that he doesn't have a chance, the lawyer's letter might just do the trick. You need a lawyer to go to court, which costs, unlike mediation where you can go on your own. A recommendation from the Schlichtungsbehoerde will hold some weight in court.
If the landlord loses in court, he will pay costs for both sides, plus have a judgment against him, which is not something anyone wants to have.

Will keep you posted.
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Old 08.06.2008, 10:56
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Re: Mietzins-Depot - Landlord Refuses to Release

Good News!!! For those of you who have been following this thread, the bank form to release the full deposit has been signed by the landlord's wife. This appears to have been done on the SAME DAY they received the documents from the Schlichtungsbehoerde with the tenants claims.

It is worth noting that the Schlichtungsbehoerde sent the letter out to the landlord (with a cc to the tenant) just one day after they received the letter and supporting documentation from the tenant. So the system is very efficient and it costs nothing to submit the documents except time and if you cannot write German, you will need some assistance with this.

So, rather than just shrug off the rent deposit, or wait the year, it is worth taking action, in my opinion.
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Old 10.06.2008, 18:43
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Re: Mietzins-Depot - Landlord Refuses to Release

Seems like everything worked out in the end then didn't it?

I think taking action like this will perhaps make some people more aware of what you are able to do in this situation; I am sure there are countless fools who ended up leaving CH with the deposit still in the bank.

Thanks Mrs. Doolittle
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