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Old 24.11.2022, 08:59
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Unresponsive Regir

Morning all
Recently, my building had some repair work. Subsequently, something went bad with the sewerage and the toilet started to smell.
I had asked the Landlord (Regie) theee times but they donít respond. What do you guys do in such cases.
Cheers
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Old 24.11.2022, 09:32
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Re: Unresponsive Regir

Make personal visit and kick up stink
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Old 24.11.2022, 10:59
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Re: Unresponsive Regir

tl;dr; Use registered mail, threaten to withhold rent (follow proper procedure), get it professionally fixed and bill landlord, go to rental arbitration.

From the Zurich rental court translated with deepl.com
(Procedure is stipulated by federal law, the Code of Obligations (CO) and thus applies also to other cantons)

Defects during tennecy

According to Art. 259 CO, the tenant must remove defects that can be remedied by minor cleaning or repairs required for ordinary maintenance at its own expense.

In contrast, the landlord is responsible for the removal of medium and serious defects of the leased property, unless the tenant is responsible for the defect (Art. 259a para. 1 CO). This is the case if the tenant or a person for whom she is responsible (e.g. visitor, roommate) has caused the defect intentionally or negligently.

According to Art. 259a CO, the tenant is entitled to the following rights in case of defects of the rental object or disturbances in the use, depending on the type and severity of the defect:
  • elimination of the defect by the landlord
  • substitute performance at the expense of the landlord
  • reduction of the rent
  • compensation
  • takeover of the legal dispute with a third party
  • deposit of the rent
  • termination of the lease without notice.
Cleaning and minor repairs

According to Art. 259 CO, the cleaning of the rented object is the responsibility of the tenant. Likewise, the tenant has to carry out minor repairs (e.g. to replace defective electrical fuses). Insofar as a deficiency in the leased property falls into the category of cleaning or minor repairs, the tenant therefore has no claims against the landlord. Conversely, the breach of the cleaning and repair obligation constitutes a breach of contract by the tenant, which may under certain circumstances lead to a liability for damages under Art. 97 CO.

Example:
Due to neglected cleaning of the rented property, there is an infestation of vermin in the rented apartment.

The tenant's obligation to repair is of a subordinate nature. As soon as a measure requires expertise, it is no longer the tenant's responsibility. As a guideline, arbitration authorities and rental courts currently consider a value of Fr. 150.- per repair for the apartment rent.

Often, form rental agreements regulate these issues more precisely. However, rental contract clauses which burden the tenant with more than just the minor maintenance violate mandatory law in the case of the rent of residential and commercial premises and are therefore invalid (Art. 256 para. 2 CO).

Elimination of the defect

If defects arise in the rented property that go beyond the minor cleaning and repairs pursuant to Art. 259 CO, the tenant must report them to the landlord (Art. 257g CO). This applies regardless of who is responsible for the defect.

The tenant is entitled to have the defect remedied (Art. 259a para. 1 lit. a CO). If the landlord refuses to remedy the defect, the tenant may sue the arbitration authority for removal. In the case of serious defects, the tenant may subsequently be authorized by the court to remedy the defect at the landlord's expense (Art. 98 OR; on this substitute performance generally BGE 142 III 321 E. 4.4 and 4.5). No action or judicial authorization is required in the case of average defects, i.e. impairments which reduce the suitability of the object for use but do not significantly impair it. Here, the tenant can directly resort to the remedy of substitute performance if the landlord does not respond to her notice of defects within a reasonable period of time.

Sometimes, however, the landlord has no influence on a defect. A typical case is (permitted) construction activity in the neighborhood. In such cases, the claim for removal is not applicable. The tenant can, however, demand a reduction of the rent and, if necessary, also compensation.

Substitute performance

Substitute performance is a form of elimination of the defect. It differs from the usual remedy in that the defect is remedied by the tenant, although this would actually be the landlord's responsibility. Before resorting to substitute performance, the tenant must always ensure that the landlord (or an auxiliary person of the landlord, for example the janitor) is aware of the defect. Because he has to prove this in case of dispute, it is best to report the defect by registered letter. If the landlord does not respond within a reasonable period of time, a distinction must be made:

In case of serious defects, which exclude or considerably impair the fitness of the object for use, a substitute performance is only possible with judicial authorization (Art. 98 CO).

Example:
Falling dust and cinder parts due to leaking ceiling (Federal Court, judgment 4C.168/2001).

Since the tenant usually cannot wait until a court decision, the law additionally allows him to terminate the contract without notice in such cases (Art. 259b lit. a CO). At the same time, the tenant may claim damages from the landlord (e.g. reimbursement of the costs for a hotel and for the storage of the furniture). If the landlord cannot be reached, the tenant can act in accordance with the rules on management without a mandate (Art. 419 et seq. CO). He does not need judicial authorization to do so, but is only fully entitled to reimbursement of his expenses if he is strictly guided by the interests of the landlord.

• If the defects are less serious, the tenant may remedy them himself without judicial authorization (Art. 259b lit. b CO). He may charge the costs to the landlord or offset them against future rent (Art. 265 CO). The Federal Supreme Court has ruled that a tenant was allowed to have a terrace sealed at the landlord's expense after the landlord had failed to remedy the problem; the work had cost Fr. 11'000 (Federal Supreme Court, ruling 4A_628/2010). It should therefore also be permissible to have the faded walls of a room repainted, a dirty courtyard or staircase cleaned or flood damage repaired after 15 years of tenancy. It is important that the landlord is aware of the defect and has not done anything within a useful period of time and that the tenant has the work done professionally. Otherwise the tenant may be liable for damages (Art. 97 CO).

Reduction of the rent

The tenant is entitled to a reduction of the rent owed (rent reduction or rent abatement, Art. 259d CO) from the time the landlord becomes aware of the defect. The claim does not end until the defect has been remedied. All defects for which the landlord is liable pursuant to Art. 259a CO (see defects) give rise to a claim for a rent reduction.

As in the case of warranty claims under the law of sales, fault on the part of the landlord for the defect is not necessary for the reduction, because the reduction is only about bringing the price-performance ratio into balance. Defects that the landlord cannot influence therefore also entitle the landlord to a reduction. The extent of the reduction is determined by the relative calculation method, i.e. the value of the defective item is to be put in relation to that of the usable one. Objective criteria are decisive, namely the content of the contract as well as the type and condition of the rental object and the defect.

Examples can be found in our calculation program.
[And also this list from the Mieterverband]

Until recently, it was disputed whether the rent reduction depends on a corresponding declaration by the tenant. In any case, in the event of a dispute, the tenant must prove that or when the landlord was aware of the defect. According to the Federal Supreme Court, it is sufficient if the tenant has made clear that she is disturbed by the defect (BGE 142 III 557 E. 8.3.4). If this is the case, she can also demand the reduction retroactively and even after termination of the tenancy. The notification is best made by registered letter. In addition, the letter should explicitly request a reduction or a remedy of the defect. Rent paid in excess can be reclaimed. The claim is of a contractual nature and expires within five years (BGE 130 III 504 E. 5.1).

Compensation

If the tenant has suffered damage as a result of the defect, the landlord must compensate him in accordance with Art. 259e CO unless he proves that he is not at fault. The landlord's conduct in breach of duty may also consist in an omission, such as the violation of inspection and maintenance obligations.

Examples:
The heating system is not maintained for years. The resulting defect can only be repaired after several days, during which the rented offices are unusable.
Inadequate stairwell lighting causes a visitor of the tenant to fall and injure himself.
The landlord does nothing about white dust throughout the apartment. The defect disappears by itself with time, but the landlord has to compensate for the damage to the apartment furnishings (Federal Court, judgment 4A_647/2015 E. 6).

In practical terms, the claim for compensation is particularly significant in the case of consequential damage caused by a defect, because here the rent fixation often does not provide sufficient compensation.

Examples:
The tenant's furniture suffers damage because the landlord has not repaired the leaking windows. The tenant has to spend the night temporarily in a hotel due to the failure of a poorly maintained heating system.

When calculating the damage, the benefits that the tenant has gained as a result of the damaging event must be included (e.g. a reduction in rent). It is also important that the tenant does everything to keep the damage as low as possible (damage reduction obligation).

Deposit of the rent

In case the landlord does not remedy a defect within a reasonable period of time, the tenant may threaten to deposit the future rent due with the rental arbitration authority (Art. 259g para. 1 CO). This gives the tenant a means of exerting pressure with regard to the rectification of defects, because with the deposit the rent is deemed to have been paid (so-called fictitious payment, cf. Art. 259g para. 2 CO). Therefore, the landlord can no longer terminate the lease due to default of payment. The Federal Supreme Court allows it to suffice for the payment fiction that the tenant assumed in good faith that she was entitled to deposit (BGE 125 III 120).

The right of deposit requires that a defect exists which cannot be remedied by the tenant (see defects). Furthermore, it requires that the landlord does not remedy the defect within a period set by the tenant. If the landlord remedies the defect within the time limit (or at least initiates the remedial action), a deposit is inadmissible. The request to remedy the defect as well as the threat of deposit must be made in writing in order to be valid.

If the landlord does not comply with the request to remedy the defect in due time, the law also requires a written notice of the deposit. The entire rent, and not only the net rent, but the entire remuneration for the use of the object including any agreed ancillary costs, may be deposited (BGE 124 III 201). However, the deposit of a part of the rent is permissible. According to Art. 259h and 259i CO in conjunction with Art. 208 para. 4 CPC, the deposited rent accrues to the landlord if the tenant does not appeal to the rental arbitration authority within 30 days (and e.g. sues for removal of the defect, rent reduction and damages).

If no settlement is reached rental arbitration authority, the latter may submit a proposal for judgment to the parties (Art. 210 para. 1 lit. b CPC). If one of the parties rejects the proposal for judgment within 20 days, the rental arbitration authority shall serve a notice of claim on the rejecting party (Art. 211 para. 2 lit. a CPC), which must be filed with the rental court within 30 days. Otherwise, the proposed judgment shall be deemed accepted (Art. 211 para. 3 CPC). If the authority does not make a proposal for judgment, it issues the plaintiff - i.e. the tenant - with the authorization to file an action with the rental court within 30 days (Art. 209 para. 4 CPC).

Depositions are tricky, the corresponding procedures complicated. In any case, it is advisable to visit the legal information office of the conciliation authority or to seek legal advice before exercising this right. In Zurich, the rental arbitration authority issues a deposition order. Based on this, the tenant can pay the rent to the cashier of the district court. [For other places check with your local rental arbitration authority or rental court where and how the rent has to be deposited.]

Termination due to serious defects of the rental object

The landlord must hand over the rental object in a condition suitable for the intended use and maintain it in such a condition during the rental period (Art. 256 para. 1 CO). If defects in an immovable leased property (e.g. in a residential or commercial space) are so serious that they preclude or significantly impair the presumed use, the tenant may terminate the contract without notice.

Examples:
Room temperature reaches a maximum of 16į C; factory premises are under water.

The prerequisite, however, is that the landlord is aware of the defect and does nothing about it within a reasonable period of time (Art. 259b lit. a CO). It is true that the tenant does not necessarily have to set a deadline himself. In case of dispute, however, he must prove that the landlord was aware of the defect and did nothing about it. It is therefore best to inform the landlord of the deficiencies by registered letter and demand proof of a tradesman's order within a few days. Caution: Only serious defects entitle the tenant to terminate the lease. If the tenant terminates without sufficient reason, he risks having to pay the rent anyway. Be sure to state the exact reason for termination in the termination letter.
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  #4  
Old 24.11.2022, 11:00
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Re: Unresponsive Regir

Wonderful info. Thank you for posting, aSwissInTheUS!
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