The different ways of guaranteeing a lease

The different ways of guaranteeing a lease

To help my friend find accommodation, I co-signed his tenancy agreement, thinking I was acting as guarantor, but I now realise that we appear on the document as "tenants jointly and severally liable".

Does this change anything for me?

A, Geneva

Most landlords require tenants to provide a guarantee to protect their interests. In principle, this is a deposit of a sum of money, up to a maximum of three monthly rents for residential and commercial leases, in accordance with art. 257e of the Swiss Code of Obligations (CO).

Geneva has a specific law protecting guarantees provided by tenants, which excludes all forms of guarantees given by tenants and third parties in favour of a landlord other than, on the one hand, those in cash or securities provided by the tenant himself or by a third party and, on the other hand, the use of simple sureties. A similar law exists in the canton of Vaud.

In other words, apart from the usual rent guarantee, the landlord cannot ask the tenant for any additional guarantee. However, if the landlord has doubts about the tenant's financial capacity, he can ask the tenant to provide a third-party guarantor to whom he can turn if the tenant fails to pay the rent.

In tenancy law, a joint and several commitment can be expressed in two different ways: firstly, in the case of a joint tenancy, when several people rent a dwelling or business premises together; secondly, by signing a surety bond. Such a guarantee is said to be "simple" when the lessor must first make use of all possibilities to obtain payment from the tenant before appealing to the guarantor; it is said to be "joint and several" if the lessor can choose to appeal directly to the guarantor in the event of non-payment of the rent, but given its importance, this commitment can only be made by a natural person in the authenticated form provided for in article 493 CO, i.e. before a notary.

To get round this last constraint, the property industry has developed another solution: getting the guarantor to sign as a flatmate. Given that, under tenancy law, there is no obligation on the tenant to occupy the property, this practice appears to be legal and has not yet been invalidated by the courts. However, it is advisable to include a clause in the lease contract clearly expressing the will of the parties, i.e. the absence of any intention on the part of the third party (who is no longer just a guarantor) to occupy the premises personally and the scope of his commitment, bearing in mind that this commitment is more important than a simple deposit.