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Old 30.10.2017, 12:55
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find Kaution account and balance

My husband just rang the meiterverband. The woman told us that if the landlord didn't give us the details of the kaution account (we moved in 11 months ago) we could use that already paid money as rent. Does anyone know if this is true? How could we find out if he set up an account in our name, and what amount he deposited?
thanks
Julie
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Old 30.10.2017, 12:59
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Re: find Kaution account and balance

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My husband just rang the meiterverband. The woman told us that if the landlord didn't give us the details of the kaution account (we moved in 11 months ago) we could use that already paid money as rent. Does anyone know if this is true? How could we find out if he set up an account in our name, and what amount he deposited?
thanks
Julie
I find it strange that you were recommended to use that Kaution paid in instead of rent, if the landlord doesn´t inform you.

Have you asked the landlord? For my Kaution a bank account was opened, separately from the landlord´s other business.
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Old 30.10.2017, 13:19
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Re: find Kaution account and balance

The kaution should be on a bankaccount on your name, and the landlord can only take money out of that with your permission. The landlord has to set up a special account for this and the renter has to sign an agreement that the landlord can open a account in name of the renter, and aslong as this has not been done no kaution has to be paid.

To many people do not know this and the money ends up on the landlords account, if this has happened you can demand a transfer of this sum towards a special kaution account.

If the landlord does not cooperate on this, then the demand to pay kaution has to be seen as invalid and the payment to the landlord can be seen as a normal payment and thus be used for the rent. Meaning that you for example could stop paying the rent on the last 2 or 3 months (depending on the kaution) when leaving the house.

However what I miss in this story: Did you pay towards a special kaution account in your name or just towards the landlords account, and what has already been undertaken to retrieve this info? The openingspost is very short on info.
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Old 30.10.2017, 13:22
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Re: find Kaution account and balance

We can ask him but I am not sure how helpful he will be so I wondered if I am entitled to find out how much is in my kaution account myself.
We did pay kaution, but were never advised of the account, or how much the landlord put in it.
The landlord wanted 3 months kaution but because we applied from Australia we were only happy to pay 1 month and then we paid 2 more months when we arrived.
The meiterverband woman said legally the landlord must provide us with the details of the account, if he didn't she assumed he didn't set one up. She said if it is not in the proper kaution account then this pre-paid money could be used as our rent instead of him using 3 months rent for his own purposes.
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Old 30.10.2017, 13:26
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Re: find Kaution account and balance

Quote:
The kaution should be on a bankaccount on your name, and the landlord can only take money out of that with your permission. The landlord has to set up a special account for this and the renter has to sign an agreement that the landlord can open a account in name of the renter, and aslong as this has not been done no kaution has to be paid.

To many people do not know this and the money ends up on the landlords account, if this has happened you can demand a transfer of this sum towards a special kaution account.

If the landlord does not cooperate on this, then the demand to pay kaution has to be seen as invalid and the payment to the landlord can be seen as a normal payment and thus be used for the rent. Meaning that you for example could stop paying the rent on the last 2 or 3 months (depending on the kaution) when leaving the house.

However what I miss in this story: Did you pay towards a special kaution account in your name or just towards the landlords account, and what has already been undertaken to retrieve this info? The openingspost is very short on info.
Thanks EdwinNL, I think you have answered what I want to know. All money has gone into his account. We are wanting to leave (only notified him by email and conversations, not registered post but then he advertised the property which we took as his understanding-he lives upstairs .5 year) and if he wants us to play by the rules, it is only fair that he does too.
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Old 30.10.2017, 13:38
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Re: find Kaution account and balance

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Thanks EdwinNL, I think you have answered what I want to know. All money has gone into his account. We are wanting to leave (only notified him by email and conversations, not registered post but then he advertised the property which we took as his understanding-he lives upstairs .5 year) and if he wants us to play by the rules, it is only fair that he does too.
Kaution and cancellation are different things, do treat them differently and cancel according to the terms agreed on, unless you already have solid proof that he agreed on the cancellation date.
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Old 30.10.2017, 14:05
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Re: find Kaution account and balance

You have two issues which are not related to each other.

First issue:
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All [rental deposit] money has gone into his account.
If you paid three months worth of rental deposit then that money should be in the deposit account (plus maybe a few Rappen of interest accured).
You have to inform the landlord that the money must be put in an approved rental deposit account running on your ASAP as define in Art. 257e Code of Obligations. https://www.admin.ch/opc/en/classifi...dex.html#a257e
Additionally I would state that if that is not done by the end of November you will pay at least three monthly payments into a special escrow account at the rental court.


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We are wanting to leave (only notified him by email and conversations, not registered post but then he advertised the property which we took as his understanding-he lives upstairs .5 year).
Very important a cancellation is only legal and valid when it is done writing, this is either a piece of paper of a PDF signed using a SuisseID or other by Swiss government approved kind of electronic Signature https://www.sas.admin.ch/sas/en/home...hesas/pki.html
In case of a married couple or registered partnership both partners must sign the cancellation later to be valid. Art. 266l and 266m Swiss Code of Obligations. https://www.admin.ch/opc/de/classifi...dex.html#a266l
It is highly recommended to send such a cancellation by registered mail. Although, any other provable and legal form of successful delivery is also O.K..
If your landlord really starts playing by the book your non-formal, non-binding cancellation may become a problem as it is void by law.
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Old 30.10.2017, 14:08
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Re: find Kaution account and balance

No, if the solid proof is 'registered mail' we did fail. He knew we wanted to leave, the emails are very clear, he even suggested to us that we airbnb the property while living in Australia and we still said no, but we are not planning to take him to court. He says there are 2 potential candidates but we are not sure how much notice he intends to give us after he has found someone. (I put ads up in town but had to put his contact details on it as we went away for 3 weeks, also he asked me to advertise it at a higher price than on our contract). He had ticked akonto for the nebenkosten, but then charged us more when we arrived from Australia, rather than having to provide us with a bill as he doesn't have a seperate counter for heizung/wasser/strom.

But, even if we have to stay another year I would like to use the money of ours that he has in his account as our rental payment. Why should he be able to use it if the law says it needs to go into a special account?
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Old 30.10.2017, 14:11
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Re: find Kaution account and balance

sorry, I didn't want to get into all of this about the notice as I had already done that in another post and we realise that we did not do that properly. My question was about the kaution as I would prefer us to use that money rather than him. Fair enough, right?
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Old 30.10.2017, 14:15
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Re: find Kaution account and balance

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You have two issues which are not related to each other.

First issue:

If you paid three months worth of rental deposit then that money should be in the deposit account (plus maybe a few Rappen of interest accured).
You have to inform the landlord that the money must be put in an approved rental deposit account running on your ASAP as define in Art. 257e Code of Obligations. https://www.admin.ch/opc/en/classifi...dex.html#a257e
Additionally I would state that if that is not done by the end of November you will pay at least three monthly payments into a special escrow account at the rental court.




Very important a cancellation is only legal and valid when it is done writing, this is either a piece of paper of a PDF signed using a SuisseID or other by Swiss government approved kind of electronic Signature https://www.sas.admin.ch/sas/en/home...hesas/pki.html
In case of a married couple or registered partnership both partners must sign the cancellation later to be valid. Art. 266l and 266m Swiss Code of Obligations. https://www.admin.ch/opc/de/classifi...dex.html#a266l
It is highly recommended to send such a cancellation by registered mail. Although, any other provable and legal form of successful delivery is also O.K..
If your landlord really starts playing by the book your non-formal, non-binding cancellation may become a problem as it is void by law.
Wow, I will look into your first point ASwissintheUS, as for the 2nd point, you had already helped me out with that in the other post. The meiterverband woman said we should still send the notice in writing, even though it is 2 months later now, could this be true?
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Old 30.10.2017, 14:22
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Re: find Kaution account and balance

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He had ticked akonto for the nebenkosten, but then charged us more when we arrived from Australia, rather than having to provide us with a bill as he doesn't have a seperate counter for heizung/wasser/strom.
Akonto means partial pre-payment to the final bill. Once a year all auxiliary charges will be tallied up and distributed to the single apartments. Distribution can be made on different ways, floor space is one example how it can be fairly distributed. You have to right to see calculation and actual bills, so that you can check math and validity. The landlord has up to five years to bill you for the actual charges. If the total incurred auxiliary charge is lower than your akonto payments you should get reimbursed.


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But, even if we have to stay another year I would like to use the money of ours that he has in his account as our rental payment. Why should he be able to use it if the law says it needs to go into a special account?
Once again, but other told you before: You can not use the rental deposit money for rental payment. You have the obligation to pay the rent each and every month. If the money is in a special rental deposit account it will be blocked. The account can only be cleared or accessed either by court order, mutual agreement, or one year after the rent has finished and the landlord did not formally object. Once the rent has finished, there are no damages to the property, you will get the full deposit back.

On the other hand you are still free to negotiate with the landlord that the deposit money should be used to pay the last installments. But be aware that you have absolutely zero leverage and you can not force it in any way.
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Old 30.10.2017, 14:36
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Re: find Kaution account and balance

[QUOTE=aSwissInTheUS;2867148]You have two issues which are not related to each other.

First issue:

If you paid three months worth of rental deposit then that money should be in the deposit account (plus maybe a few Rappen of interest accured).
You have to inform the landlord that the money must be put in an approved rental deposit account running on your ASAP as define in Art. 257e Code of Obligations. https://www.admin.ch/opc/en/classifi...dex.html#a257e
Additionally I would state that if that is not done by the end of November you will pay at least three monthly payments into a special escrow account at the rental court.



ASwissintheUS, I don't understand why it is my responsibility to inform the landlord that he should of put the money into a kaution account? Isn't that part of being a landlord that he needs to know, like he says it is our responsibility to know that we need to notify by registered post. Why would I have to pay the three monthly payments into a special escrow account? Our rent is up to date. I am talking about not wanting to pay some future rent as what I thought was in a kaution account isn't.
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Old 30.10.2017, 14:50
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Re: find Kaution account and balance

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Akonto means partial pre-payment to the final bill. Once a year all auxiliary charges will be tallied up and distributed to the single apartments. Distribution can be made on different ways, floor space is one example how it can be fairly distributed. You have to right to see calculation and actual bills, so that you can check math and validity. The landlord has up to five years to bill you for the actual charges. If the total incurred auxiliary charge is lower than your akonto payments you should get reimbursed.


We understand what akonto means and this is what he ticked on the contract, but 2 days after arriving in the property he spoke to my husband and said rather that him giving us a bill for anything above the $150, we should pay an extra $100 a month each month which would also cover our firewood and internet (which he told us was included, but ok, sure, we said we would pay it so it was easier for him). He asked us to turn off the heating while we went away. We agreed. When we came back we had no hot water for a shower until the next day and the house was freezing for 3-4 days. But, he saved some money. The next time we went away we did not turn it off. I turned all of the radiators to zero but we wanted hot water when we came back. He came into our apartment and turned off the heating.

He also asked my husband to mow the lawn through summer to save on nebenkosten (we are still confused as to whose nebenkosten was getting saved as gartenpflege is included on the contract and we were paying an extra $100 per month). My husband did not mind doing this at all, and even cleaned up their porch area several times. After all of this though we expected him to say that we hadn't terminated the contract correctly. Do you think someone should expect an email like this after every possible termination date passes?

Hallo xx,
Offenbar habt ihr euch entschieden, dass ihr ein weiteres Jahr in der Wohnung bleibt, da ich per 31.8.2017 keine rechtsgültige Kündigung erhalten habe. Somit wurde die Mietdauer gemäss Artikel 4 um 1 Jahr verlängert.
Solltet ihr euch aber gleichwohl für eine Rückkehr nach Australien, vor dem 30.November 2018 entscheiden, liegt es an euch, einen solventen Nachmieter zu suchen.

Wir freuen uns, dass ihr weiterhin in unserem Haus wohnt, denn ihr seit uns sehr willkommene Mieter.

Aus XXXX senden wir euch herzliche Grüsse.
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Old 30.10.2017, 14:54
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Re: find Kaution account and balance

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Why would I have to pay the three monthly payments into a special escrow account? Our rent is up to date. I am talking about not wanting to pay some future rent as what I thought was in a kaution account [but] isn't.
Because you have a legal obligation to pay the rent on time. You can not simply not pay the rent due. There are only two ways how the rent is deemed as paid:
1) Rent due is paid to the landlord
2) Rent is paid into the escrow account with the rental court.

Two wrongs to not make one right. If the landlord does not stick to protocol (pay deposit into special bank account) you still must follow the rules laid down in the law.

But as said you are still free to negotiate different terms, more to your likening, with your landlord. But get the thing on paper with signature. E-mail - shme-mail, telephon - shmelephone, etc.
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Old 30.10.2017, 14:59
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Re: find Kaution account and balance

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Akonto means partial pre-payment to the final bill. Once a year all auxiliary charges will be tallied up and distributed to the single apartments. Distribution can be made on different ways, floor space is one example how it can be fairly distributed. You have to right to see calculation and actual bills, so that you can check math and validity. The landlord has up to five years to bill you for the actual charges. If the total incurred auxiliary charge is lower than your akonto payments you should get reimbursed.



Once again, but other told you before: You can not use the rental deposit money for rental payment. You have the obligation to pay the rent each and every month. If the money is in a special rental deposit account it will be blocked. The account can only be cleared or accessed either by court order, mutual agreement, or one year after the rent has finished and the landlord did not formally object. Once the rent has finished, there are no damages to the property, you will get the full deposit back.

On the other hand you are still free to negotiate with the landlord that the deposit money should be used to pay the last installments. But be aware that you have absolutely zero leverage and you can not force it in any way.
When the landlord does not want to treat the kaution as a kaution and does not want to confirm to the law there's no need to see it as a kaution and that's why mieterverband told him that he could use it as rent.
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Old 30.10.2017, 15:00
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Re: find Kaution account and balance

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Because you have a legal obligation to pay the rent on time. You can not simply not pay the rent due. There are only two ways how the rent is deemed as paid:
1) Rent due is paid to the landlord
2) Rent is paid into the escrow account with the rental court.

Two wrongs to not make one right. If the landlord does not stick to protocol (pay deposit into special bank account) you still must follow the rules laid down in the law.

But as said you are still free to negotiate different terms, more to your likening, with your landlord. But get the thing on paper with signature. E-mail - shme-mail, telephon - shmelephone, etc.
So you are saying meterverband gives illegal advice?
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Old 30.10.2017, 15:02
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Re: find Kaution account and balance

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We understand what akonto means and this is what he ticked on the contract, but 2 days after arriving in the property he spoke to my husband and said rather that him giving us a bill for anything above the $150, we should pay an extra $100 a month each month which would also cover our firewood and internet (which he told us was included, but ok, sure, we said we would pay it so it was easier for him). He asked us to turn off the heating while we went away. We agreed. When we came back we had no hot water for a shower until the next day and the house was freezing for 3-4 days. But, he saved some money. The next time we went away we did not turn it off. I turned all of the radiators to zero but we wanted hot water when we came back. He came into our apartment and turned off the heating.

He also asked my husband to mow the lawn through summer to save on nebenkosten (we are still confused as to whose nebenkosten was getting saved as gartenpflege is included on the contract and we were paying an extra $100 per month). My husband did not mind doing this at all, and even cleaned up their porch area several times. After all of this though we expected him to say that we hadn't terminated the contract correctly. Do you think someone should expect an email like this after every possible termination date passes?

Hallo xx,
Offenbar habt ihr euch entschieden, dass ihr ein weiteres Jahr in der Wohnung bleibt, da ich per 31.8.2017 keine rechtsgültige Kündigung erhalten habe. Somit wurde die Mietdauer gemäss Artikel 4 um 1 Jahr verlängert.
Solltet ihr euch aber gleichwohl für eine Rückkehr nach Australien, vor dem 30.November 2018 entscheiden, liegt es an euch, einen solventen Nachmieter zu suchen.

Wir freuen uns, dass ihr weiterhin in unserem Haus wohnt, denn ihr seit uns sehr willkommene Mieter.

Aus XXXX senden wir euch herzliche Grüsse.
Nice mail, a friendly reminder. Nothing wrong with that, would be great if every landlord would do such.

For the rest, I'm amazed to what you all agreed, the landlord must think he can do with you as he pleases.
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Old 30.10.2017, 15:05
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Re: find Kaution account and balance

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So you are saying meterverband gives illegal advice?
We have no idea what advise the meterverband gave, we have been given information that on the balance of probabilities is incorrect.

If the OP knows what to do, why is he asking here?
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Old 30.10.2017, 15:06
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Re: find Kaution account and balance

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So you are saying meterverband gives illegal advice?
Maybe things lost in translation? But on the other hand if it is not deposit money than it would be pre-payed rent.

I would say it counts what is stated in the rental contract. If the rental contract says three month of deposit than it is deposit money and it should be put in a special account. If the contract does not say anything about a deposit than the money is pre-paid rent and you could theoretically skip three payments.
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Old 30.10.2017, 15:06
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Re: find Kaution account and balance

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Nice mail, a friendly reminder. Nothing wrong with that, would be great if every landlord would do such.

For the rest, I'm amazed to what you all agreed, the landlord must think he can do with you as he pleases.
But it was 2 weeks after the date, so not a reminder, more of a statement, and as we saw it, a 'ha, ha, ha, tricked you'

So, we're suckers, hey!? lol.
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