Swiss tenancy law carefully regulates the relationship between landlords and tenants, particularly with regard to repairs and maintenance. These regulations, anchored in Articles 253 to 274 of the Swiss Code of Obligations (CO), establish a precise framework defining the responsibilities of each party. For tenants and landlords alike, understanding these obligations is a key factor in avoiding potential disputes. The question of who is responsible for what work, in what circumstances and under what terms, is a fundamental aspect of the contractual relationship. This complex issue calls for an in-depth analysis of legal provisions and case law, in order to grasp all the nuances applicable to the concrete situations encountered on a daily basis in Swiss property management.
The Swiss legal system provides a precise framework for responsibilities relating to the maintenance of leased premises. This framework is based primarily on the Swiss Code of Obligations, but is further clarified in other texts and in the abundant case law on the subject.
Articles 256 to 259i of the Swiss Code of Obligations form the legal basis for maintenance and repair obligations. Article 256 CO requires the lessor to deliver the property in a condition suitable for the use for which it was leased, and to maintain it in that condition. This fundamental obligation defines the landlord’s primary responsibility for maintaining the property.
Article 257f of the Swiss Code of Obligations lays down the tenant’s obligation to use the property with care. This provision forms the basis of the tenant’s responsibility for routine maintenance and minor repairs.
Swiss law makes a clear distinction between defects that must be repaired by the lessor (art. 259a to 259i CO) and damage caused by the lessee, which the latter must repair at his own expense. This fundamental distinction underpins the entire legal regime governing tenant repairs.
The Swiss courts, and in particular the Swiss Federal Supreme Court, have developed a substantial body of case law clarifying the contours of legal obligations. For example, ATF 135 III 345 clarified the notion of defect and the conditions under which the tenant can demand repairs. Other decisions have established criteria for determining what constitutes minor maintenance work to be carried out by the tenant.
Case law has specified that normal wear and tear does not constitute damage attributable to the lessee, but is part of the risks assumed by the lessor as part of his obligation to maintain the property in good condition.
While tenancy law is primarily governed by federal law, some cantons have adopted additional provisions. These rules can influence the interpretation of maintenance and repair responsibilities. For example, some cantons have drawn up regulations specifying what constitutes minor repairs to be carried out by the tenant.
Local customs, recognized by cantonal authorities, may also play a role in determining respective obligations. These practices vary from one canton to another, and may influence the interpretation of contractual clauses relating to maintenance.
This complex legal framework requires particular attention when drafting leases and managing day-to-day rental relations. A thorough knowledge of these legal sources can help avoid numerous disputes and clarify the responsibilities of each party.
The owner of a rental property in Switzerland assumes significant responsibility for maintaining the property in an appropriate condition. This obligation derives directly from the Swiss Code of Obligations, and is a fundamental pillar of the contractual relationship with the tenant.
Under article 256 of the Swiss Code of Obligations, the landlord must deliver the property in a condition suitable for the agreed use, and maintain it in this condition throughout the term of the lease. This fundamental obligation implies that the landlord must guarantee that the leased property meets the minimum safety, health and functionality requirements expected of a dwelling or business premises.
The lessor must ensure that the installations and equipment made available to the lessee are in good working order. This applies in particular to
Jurisprudence generally considers that these elements are part of the building’s structure, and that their upkeep is therefore the owner’s responsibility.
Work affecting the structure of the building or requiring specific technical skills is the responsibility of the lessor. These include
Such work, which is often costly and complex, cannot be charged to the tenant, even if it becomes necessary during the term of the lease. The Swiss Federal Court has confirmed this division of responsibilities on several occasions, notably in ATF 142 III 557.
When a defect appears in the rented property, the tenant must report it to the landlord. The landlord is then obliged to remedy the defect within a reasonable period of time. Article 259b CO stipulates that if the lessor becomes aware of a defect and fails to remedy it within a reasonable time, the lessee may:
The procedure for reporting defects is of paramount importance. To be valid, it must generally be made in writing, detailing precisely the nature of the problem found. The lessee must allow the lessor a reasonable period of time in which to carry out the necessary repairs, before considering other measures.
The lessor’s maintenance obligations are subject to certain limits. He is not obliged to repair damage caused by the tenant or resulting from inappropriate use of the property. Likewise, the lessor is not responsible for minor defects that fall within the scope of routine maintenance.
Furthermore, the lessor may contractually transfer certain maintenance obligations to the lessee, particularly in the case of commercial leases. However, such transfers of responsibility must be clearly stipulated in the contract, and may not concern structural elements of the building or defects pre-existing the lease.
While the lessor assumes the majority of structural maintenance obligations, the lessee is not exempt from responsibility. Swiss law imposes a number of specific obligations aimed at preserving the condition of the leased property and ensuring its use in optimum conditions.
Article 259 of the Swiss Code of Obligations stipulates that minor maintenance work is the tenant’s responsibility. This notion, although present in the law, is not precisely defined. Case law and practice have helped delimit its contours.
This is generally considered to be minor maintenance work:
Such work is generally characterized by its low cost and simplicity of execution, requiring no special technical skills. A criterion often adopted by the courts is that such work should be capable of being carried out by a moderately skilled person with no specific training.
The lessee is obliged to notify the lessor of any defects which he is not required to remedy himself (art. 257g CO). This reporting obligation is a fundamental element of the contractual relationship, and is designed to enable the lessor to take prompt action to prevent further damage.
Failure to report can result in the tenant being held liable if this omission leads to a worsening of the problem. For example, if an unreported minor water leak eventually causes major damage, the tenant could be held liable for the additional costs incurred by his or her silence.
To be legally effective, the report must:
In accordance with article 257f of the Swiss Code of Obligations, the tenant is liable for damage caused by his own fault or negligence, or that of persons to whom he has allowed access to the rented property (members of the household, visitors, sub-tenants, etc.).
This liability is clearly distinct from normal wear and tear, which remains the responsibility of the lessor. The dividing line between normal wear and tear and damage can sometimes be difficult to draw, and is often a source of dispute when it comes to the final inventory of fixtures.
The courts generally consider damage attributable to the tenant:
The tenant is responsible for the regular upkeep of certain items ancillary to the main dwelling:
These obligations may be specified in the lease contract or derive from local custom. In some cantons, specific regulations may apply, for example concerning the maintenance of outdoor areas or snow removal.
Effective management of repairs to leased property requires compliance with specific procedures and knowledge of the practicalities involved. These procedural aspects, although sometimes technical, are the key to effective resolution of maintenance problems.
The first step in any repair procedure is for the tenant to report the defect. Far from being a mere formality, this step constitutes a legal act on which the subsequent rights and obligations of the parties depend.
Ideally, the signal should respect the following characteristics:
In emergency situations (major water leaks, heating failure in winter, etc.), an immediate telephone report can supplement the written notification. Some landlords provide specific forms or online platforms to facilitate this process.
The Swiss Code of Obligations does not set a precise deadline for the lessor’s intervention, but merely refers to a reasonable period of time. This notion is assessed according to several criteria:
Jurisprudence has established certain benchmarks: a heating breakdown in winter justifies an intervention within 24 to 48 hours, while a minor aesthetic problem can wait several weeks without constituting a breach by the landlord.
In the event of a proven emergency, if the lessor cannot be reached or does not intervene quickly, the lessee is authorized to take the necessary precautionary measures himself, or even to have the essential work carried out, at the lessor’s expense.
To carry out any necessary repairs, the lessor or his agents must have access to the leased property. However, this right of access must respect the tenant’s rights:
The tenant may not oppose access without a legitimate reason. An unjustified refusal may incur liability for any worsening of the defect or delays in repairs.
In the event of an emergency (water damage threatening the structure, serious electrical hazard), advance notice can be reduced, or even waived if the situation absolutely requires it.
The work must be carried out in such a way as to minimize inconvenience to the tenant. This duty of care includes:
If the work temporarily renders the property uninhabitable or significantly reduces its use, the tenant may claim a proportional reduction in rent for the period concerned (art. 259d CO). This reduction must be explicitly requested and may be the subject of negotiation or, failing agreement, legal proceedings.
A good practice for both lessors and lessees is to systematically document the work carried out:
This documentation can prove invaluable in the event of a subsequent dispute or recurrence of the problem. It enables us to trace the history of interventions and establish respective responsibilities.
For major work, a joint acceptance report can be drawn up to confirm that the repairs have been carried out correctly, or to identify any reservations requiring further action.
Despite a structured legal framework, maintenance and repair issues are a frequent source of conflict between landlords and tenants in Switzerland. These disputes can be resolved in a variety of ways, from direct negotiation to formal legal proceedings.
The Swiss system provides for a specific procedure for lease disputes:
The procedure before the conciliation authorities is characterized by its simplicity and rapidity. It begins with a written request describing the subject of the dispute and the claimant’s allegations. A hearing is then organized, during which the authority attempts to reconcile the parties’ points of view.
If conciliation fails, the authority issues an authorization to proceed, enabling the claimant to bring the matter before the competent court within a time limit generally set at 30 days.
In certain urgent situations, the tenant can request provisional measures from the competent court, without going through the conciliation phase. These measures are designed to preserve the rights of the parties pending a decision on the merits of the case.
To obtain such measures, the applicant must demonstrate:
The judge can then order the lessor to carry out the necessary repairs within a given timeframe, subject to a fine. In extreme cases, the judge may authorize the tenant to have the work carried out by a third party at the landlord’s expense.
Assessing defects and responsibility for repairing them often requires technical expertise. This expertise may be required at various stages:
The appointed surveyor, usually a building professional, carries out the assessment:
The expert’s report is often a decisive element in the resolution of a dispute, whether by amicable agreement or court decision.
In addition to official procedures, a number of alternative avenues can be explored:
These approaches offer a number of advantages: speed, confidentiality, preservation of the contractual relationship, and often lower costs than legal proceedings.
Mediation is particularly well-suited to situations where technical aspects are intertwined with relational issues. It makes it possible to address both the factual aspects of the dispute and the subjective perceptions of the parties.
The outcome of a maintenance dispute can have a variety of consequences:
In the most serious cases, persistent failure to maintain the property may justify early termination of the lease by the tenant (art. 259b let. a CO), or even give rise to an action for damages if the failure has caused particular harm.
It should be noted that referral to the authorities does not exempt the tenant from continuing to pay rent, unless a formal deposit is made with the cantonal body designated for this purpose, a procedure strictly regulated by article 259g CO.
The maintenance of rented premises in Switzerland is undergoing significant change, driven by social, technological and environmental factors. These developments are gradually changing the practices of both landlords and tenants.
Digital transformation is now affecting property management and changing the practicalities of rental maintenance:
These tools improve the traceability of requests and interventions, reducing the risk of disputes arising from communication problems. Some real estate companies are developing complete customer portals incorporating these functions, while start-ups are offering specialized solutions for technical property management.
Recent case law is gradually recognizing the legal validity of these electronic communications, provided they guarantee reliable proof of the transmission and reception of information.
Environmental considerations are increasingly influencing maintenance practices for leased properties:
These developments raise specific legal issues concerning the apportionment of costs between landlord and tenant. If energy improvements benefit the tenant by reducing costs, they may justify a rent increase under article 269a let. b CO, insofar as they constitute added value.
Several cantons have introduced tax incentive programs or subsidies to encourage these renovations, sometimes complicating the legal analysis of their impact on rents.
There is a growing trend towards professionalizing the technical management of rental properties:
This professionalization aims to anticipate problems rather than resolve them after they have arisen, thereby reducing long-term costs and improving tenant satisfaction. It is accompanied by more rigorous documentation of interventions, facilitating traceability in the event of a dispute.
Large institutional owners (pension funds, insurance companies, real estate funds) are particularly active in this approach, which is gradually being extended to private owners through the intermediary of professional agencies.
The emergence of new forms of housing and rental is changing traditional maintenance practices:
These developments upset the traditional division of responsibilities, and often call for specific contractual adaptations. Case law on these issues is still limited, but the first rulings suggest that the general principles of lease law should be applied, with adaptations to take account of the specific features of these new models.
In view of the growing complexity of lease maintenance issues, specialist legal assistance is becoming a more widespread practice. Leasehold lawyers can offer invaluable support to landlords and tenants alike:
A specialized law firm can intervene at various stages, from the prevention of disputes to their resolution, via strategic advice on large-scale maintenance programs. This legal expertise, combined with technical knowledge of the building, helps to optimize the management of maintenance issues, while providing legal certainty for the decisions taken.
The constant evolution of jurisprudence and practices in this field makes it particularly relevant to rely on legal professionals who keep their knowledge up to date and are able to anticipate emerging trends in rental maintenance.
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